On balance, I think single-state secession is probably unconstitutional. And yet the thing continues to nag at me.
The Constitution nowhere says, in so many words, that once you're in, you're in forever. Yes, that conclusion can be teased from - implied from - various provisions. But, assuming the Constitution is forever, isn't that fact almost certainly the single most important reality of the document? Shouldn't readers and prospective voters have been placed on explicit notice, if that was the intent? It all feels a little, how should I put this, sleazy, sort of like the bait-and-switch tactics that might be employed by a used car salesman.
Likewise, you'd think that, if you were a delegate at one of the state ratification conventions in 1787-1788, the single most important question on your mind would be, Hey, is this thing forever? And if people understood that it was forever, don't you think that opponents, at least, would be shouting that fact from the rooftops? "Don't think that, if you ratify, you can ever get out! You and your children and your children's children will be bound unto the last generation!"
And yet the record is strangely silent. To the best of my knowledge, not a single Anti-Federalist intoned such warnings. And likewise, no Federalist, to the best of my knowledge, asserted that ratification was an unalterable act, with one exception, at the end of the New York Convention, after ten states had already ratified the Constitution - and when it was too late.
All of this leads me to infer that one of two conclusions must apply: either everyone understood that ratification was forever - it wasn't necessary for opponents to make the argument, everyone already knew it - or no one (or virtually no one, and virtually wasn't talking) did.
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In one sense, the closing weeks of the convention called to decide whether New York would ratify the United States Constitution are irrelevant. On June 24 and July 2, 1788, news had arrived in Poughkeepsie, where the delegates were assembled, that New Hampshire and Virginia had ratified the document – the ninth and tenth states to do so.
Article VII provided that “[t]he Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” By its terms, the document, and the new government it created, would go into effect whether New York ratified it or not.
At the same time, both opponents and proponents of the Constitution at the Convention recognized that New York's decision was fundamentally important. Both pros and antis recognized that New York, as an emerging commercial powerhouse occupying a crucial swath of land that divided the New England states from their more southerly brethren, potentially held the key to whether the new government would, as a practical matter, succeed. In the words of Yale Lawprof Akhil Amar,
Then, New Hampshire and Virginia voted their approval – enough to put the document in operation, but only among the states that ratified it. At this point, all eyes turned to Poughkeepsie, where New York's ratifying convention was being held and where the Constitution's anti-Federalist opponents initially held a commanding lead. Without the acquiescence of New York – with its critical harbors, rivers and landmass – could the Philadelphia blueprint really work as planned?
The closing weeks of the Poughkeepsie Convention – roughly July 14, 1788 through July 26, 1788, when the Constitution was approved by a razor-thin margin – are also inherently dramatic. The positions taken and arguments advanced shed light, I think, on what both advocates and opponents understood the nature of the proposed new government to be.
I have been over some of this ground before. But having now laid my hands on Volume XXIII of The Documentary History of the Ratification of the Constitution, covering ratification by New York from July 14, 1788, I propose to take a new look at some of the key events in those closing weeks. In particular, I hope to examine what those events suggest about the most important constitutional issue of the nation's first seventy-five years: the propriety of single-state secession. In a nutshell, did the members of the Poughkeepsie Convention – and by implication the members of other conventions that had already approved the Constitution – understand that ratification was a permanent and un-recallable act (except, perhaps, through the amendment procedures of Article V)?
Learned commentators - including the aforesaid Prof. Amar - have argued that the debates in the Poughkeepsie Convention's closing days demonstrate that it was generally understood that the Constitution, once ratified, was (in the words of James Madison) "in toto and for ever." I, too, took this to be the case. But upon continued reflection I think the evidence is far more ambiguous. Indeed, I believe a powerful case can be made that, until the very end at least, no one - proponents or objectors - understood this to be so. And this suggests that those who had voted on the Constitution at earlier conventions - those of the ten states that had already ratified the document - didn't understand it either.
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As of mid-July 1788, the pro and anti forces at the Poughkeepsie Convention were locked in a desperate struggle. The antis, headed by John Lansing and Melancton Smith, had arrived at the convention on June 17, 1788 with a large majority. The news from New Hampshire and Virginia had weakened their resolve somewhat, but they fought on and appeared to continue to hold the upper hand. On July 14, only the impassioned pleas of the leaders of the pro-Constitution forces, John Jay and Alexander Hamilton (“the american Cicero”, in the words of David S. Bogart, who witnessed Hamilton's performance that day), persuaded the convention, sitting in Committee of the Whole, to adjourn for the day before taking a key vote that Federalists knew would go against them.
The positions of the parties as of mid-July boiled down to whether ratification should be conditional or not. The antis no longer advocated outright rejection. Instead, they argued that the Constitution should be ratified, but only on condition that the document be amended in a number of respects. On July 11, and again on July 15, Melancton Smith had introduced the resolution that served as the focal point of the battle.
Smith's resolution was a complex and subtle piece of work, which I will examine in my next post on the subject.
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