It’s not uncommon that people’s views change over time, even with respect to promises they’ve made. Every day our courts of law are full of parties to contracts who haven’t satisfied the terms they agreed to fulfill. There are many arguments used to justify this breach of contract. Some of these arguments include fairness, changes in circumstances, non-conformance by the other party and even something as simple as a change of opinion. Regardless of the reason, a contract is a contract and a breach is a breach, or so say the courts of law.

From an objective position it may be tempting to argue that many of these breaches are trivial, and that the contracts themselves are trivial to begin with. That doesn’t change the fact that a contract can be deeply personal and significant to the parties who originally entered into it. It’s also important to recognize that the courts are also busy from morning until night dealing with breaches of implicit contracts. These negligent claims stem from socially perceived “duties to care” which are generally accepted. This largely comes from common law.

When it comes to the Constitution of the United States, a contract established and entered into by all citizens of this country, and which directs the affairs of the people, the government and the several states, is it possible to undo the contract and the obligations associated with it? Can an individual or a state argue against further need to comply with the terms imposed by the Constitution?

From this standpoint it’s possible to examine the circumstances under which arguments might be made in favor of secession.

A Platform for Secession

Reference has already been made to some of the reasons that parties to a contract justify non-conformance, such as fairness, change in circumstance, breach by the other party, change of opinion, disagreement about the intention or meaning of the wording, ambiguity with respect to the terms, etc. It may be true that much of this confusion and disagreement could be avoided with increased clarity in the original contract.

It is precisely that premise that has motivated lawyers to create contracts that are many pages long, spanning hundreds of pages in some cases. Despite these efforts at precision, the number of court cases has increased, and in many instances, the complexity and duration of prosecution has also increased. The laws we establish under the Constitution have also grown in complexity and scope to the point that many of them are comprised of thousands of pages or more. One notable example is our modern tax law.

The relative simplicity of the Constitution, compared to laws and contracts written today, has not reduced the number of pundits ready to provide their expert view on the meaning and intention of the instrument. With a more literate population, there are more pundits than ever, which leads to ongoing debate regarding the same types of differences that motivate people to challenge contracts they’ve already committed to.

Changing Opinion and Circumstance

With respect to the Constitution, the circumstances certainly have changed. More than two centuries have removed us significantly from the agricultural and impoverished circumstances of the founding fathers. Contemporary vocabulary has shifted in meaning. Words have been associated with causes and lifestyles throughout the intervening years. Popular opinion has undergone drastic shifts. Fundamental values and standards have morphed and adapted to a changing world in which everything from professional opportunities to family structure have been redefined.

Among those citizens and politicians who have argued for secession at some point, many of their arguments focus on these changing opinions and circumstances as grounds for reevaluating or abandoning the Constitution. They argue that the extreme nature of these changes clearly justifies at least a review, if not a wholesale rewrite. Why should they be bound by laws and structures that predate electricity, telephones, television and the Internet? After all, many argue, If the founding fathers were alive today, they would do things very differently. Arguments like that highlight the potential for ambiguity.

Ambiguity

Naturally it is impossible, and probably futile, to make arguments about what a man that lived in another time would think or do if he were somehow transported to this time. This doesn’t quell the human tendency to assume empathy with of intentions. It’s very natural to assume that if they lived in this time, they would have had values and objectives similar to what is prevalent today. In spite of the futility of the exercise, it’s all too easy to project on to those men, ideas and visions that they never had. It’s precisely that assumptive tendency that drives so many individuals today to breach contracts they have entered in to.

The Government is in Breach

A secessionist may find fault with the Constitution by approaching any of the Articles I, II or III, which establish the legislative, executive or judicial branches of government respectively. He might also appeal to the sovereignty of the state, which is established in Article IV. In the present analysis, it’s not necessary to go beyond the preamble to begin to search for fault. The preamble reads:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Contained in that small paragraph are references to a “perfect Union”, “Justice”, “domestic Tranquility” and so on. These concepts are often referred to collectively as the American way of life. They represent an ideology which defines the character of a people. For many Americans, most likely a majority, these tenets are held extremely sacred and echo the sentiment expressed in the Declaration of Independence that they are “inalienable Rights”. In some regions of the country there is a growing sense that these rights are being set aside by an increasingly aggressive federal government. In other words, there exists a perception among some that the government is in breach of the Constitution.

Secessionists Need Not Be Fanatics

This passionate perspective with respect to the Constitution isn’t exclusive to a fanatical few. Patriotism is highly regarded in America and suggests that the same determination which burned in the hearts of the founding fathers is still burning today. In the mind and heart of the secessionist one might expect to find the same conflicted passions that existed in the revolutionary mind and heart.

In March of 1775, Patrick Henry appealed to the Virginia Convention “that the Colony be immediately put into a posture of defense.” Sometime later William Wirt wrote:

Gentlemen may cry Peace, Peace, but there is no peace. The war is actually begun. The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle?

Despite the relevance of those words, and the fact that the news of Lexington and Concord followed shortly after, there would be a number of armed conflicts and political entreaties made before public sentiment in America turned against the homeland. The men and women who rebelled against their mother country did so as a last resort, after they felt they had exhausted every peaceful option at their disposal.

In a similar way many have labored for their desired outcomes across many election cycles and through the passing of many new laws. They have watched the realignment of Congress and the White House from one party to another and even shifts within parties that reflected the changing views of the people. They may have even participated in the constitutional amendment process which has occurred several times in the current generation. If what they perceive is a departure from their deeply held constitutional rights, they may consider themselves the most patriotic of citizens to explore the possibility of seceding from the Union.

Secession to Restore Balance

Ultimately, the desired outcome of secession is to restore balance. While one side argues that secession is a breach of the constitutional contract, the other side argues that the only way to honor the Constitution is through secession. The perception is that by leaving the union which corruptly interprets the Constitution, there is only then the opportunity to fully accept and live according to the Constitution.

As with any contract, there is often a great deal at stake regarding a breach. For example, a marriage contract implies shared property, custody and an obligation to provide for one another. In a similar way, any individual or state that currently belongs to the union has interest in common infrastructure, natural resources and military personnel and equipment. They are invested in the economy and party to international treaties and debt obligations.

The nature of secession is extremely complicated. Given the character and breadth of common interests, some of which are mentioned above, any secession effort will struggle to establish the balance that would be its objective.

References

An American Primer