Professor Ilya Somin recently discussed the question of the existence of a right to secession. From his thoughtful piece:
The Constitution is famously silent on the issue of secession. It doesn’t explicitly guarantee states a right to secede, but also doesn’t explicitly forbid secession. Interestingly, the Articles of Confederation explicitly stated that the union is “perpetual” (which seems to foreclose secession), but the Constitution which superseded the Articles does not include any such language. This silence has led to ongoing debate over the constitutional status of secession. Prior to the Civil War, many respected scholars and political leaders claimed that secession was permitted by the Constitution. Many were apologists for slavery, but by no means all. For example, political leaders from several northern free states asserted that they had a right to secede at the 1814 Hartford Convention. …
Many people, of course, believe that the issue of secession was definitively resolved by the Civil War … There is no question that the federal government defeated the south’s attempt to secede. However, superior military might doesn’t prove superior constitutional right. There are many instances in American history where federal and state governments managed to get away with violating the Constitution by applying superior force. The imposition of Jim Crow segregation on blacks in the South is the most notorious example.
To avoid confusion, I should emphasize that I think that the federal government was right to suppress the Confederates’ efforts to secede. But not because secession is always illegal and impermissible. Rather, the Union was right in that instance because the southern states sought to secede for the indefensible purpose of protecting and extending the evil institution of slavery. Moreover, none of the southerners’ constitutional rights had been infringed by the federal government. Things would look very different if a state sought to secede for the purpose of defending fundamental human or constitutional rights rather than continuing to violate them; if, for example, the feds were trying to force slavery on unwilling free states.
During the Civil War, even some defenders of the Union admitted that secession might be justified in some instances. For instance, in his First Inaugural Address, Abraham Lincoln stated his view that the Union is “perpetual,” but also that “If by the mere force of numbers a majority should deprive a minority of any clearly written constitutional right, it might in a moral point of view justify revolution; certainly would if such right were a vital one.” Lincoln (correctly) denied that any such thing had happened in the case of the South in 1861, but left open the possibility that secession might be permissible in a situation where the federal government really had deprived a minority of a ” vital” constitutional right.
Secession can be used to advance evil ends, such as the protection of slavery. But it can also be used to pursue good ones. After all, the United States was established by means of secession from the British Empire. More recently, the secession of the Baltic States from the Soviet Union, and the secession of Slovakia from Czechoslovakia have caused far more good than harm.
Although he is primarily discussing secession, he does seem to conflate secession with revolution, as is evident from the Lincoln quote.
In the legal-political tradition of the English speaking peoples, the two most famous declarations of a right to revolution against tyranny are John Locke’s philosophical treatment of the topic in the Second Treatise of his Two Treatises of Government: In the Former, The False Principles and Foundation of Sir Robert Filmer, And His Followers, are Detected and Overthrown. The Latter is an Essay concerning The True Original, Extent, and End of Civil-Government, and Thomas Jefferson’s eloquent, popular formulation in The Declaration of Independence.
The Founders’ Constitution is an excellent resource on this topic; the following excerpts from Locke’s Second Treatise are taken from it:
149. Though in a Constituted Commonwealth, standing upon its own Basis, and acting according to its own Nature, that is, acting for the preservation of the Community, there can be but one Supream Power, which is the Legislative, to which all the rest are and must be subordinate, yet the Legislative being only a Fiduciary Power to act for certain ends, there remains still in the People a Supream Power to remove or alter the Legislative, when they find the Legislative act contrary to the trust reposed in them. For all Power given with trust for the attaining an end, being limited by that end, whenever that end is manifestly neglected, or opposed, the trust must necessarily be forfeited, and the Power devolve into the hands of those that gave it, who may place it anew where they shall think best for their safety and security. And thus the Community perpetually retains a Supream Power of saving themselves from the attempts and designs of any Body, even of their Legislators, whenever they shall be so foolish, or so wicked, as to lay and carry on designs against the Liberties and Properties of the Subject. For no Man, or Society of Men, having a Power to deliver up their Preservation, or consequently the means of it, to the Absolute Will and arbitrary Dominion of another; whenever any one shall go about to bring them into such a Slavish Condition, they will always have a right to preserve what they have not a Power to part with; and to rid themselves of those who invade this Fundamental, Sacred, and unalterable Law of Self-Preservation, for which they enter’d into Society. And thus the Community may be said in this respect to be always the Supream Power, but not as considered under any Form of Government, because this Power of the People can never take place till the Government be dissolved. …
221. There is therefore, secondly, another way whereby Governments are dissolved, and that is; when the Legislative, or the Prince, either of them act contrary to their Trust.
First, The Legislative acts against the Trust reposed in them, when they endeavour to invade the Property of the Subject, and to make themselves, or any part of the Community, Masters, or Arbitrary Disposers of the Lives, Liberties, or Fortunes of the People.
222. The Reason why Men enter into Society, is the preservation of their Property; and the end why they chuse and authorize a Legislative, is, that there may be Laws made, and Rules set as Guards and Fences to the Properties of all the Members of the Society, to limit the Power, and moderate the Dominion of every Part and Member of the Society. For since it can never be supposed to be the Will of the Society, that the Legislative should have a Power to destroy that, which every one designs to secure, by entering into Society, and for which the People submitted themselves to the Legislators of their own making; whenever the Legislators endeavour to take away, and destroy the Property of the People, or to reduce them to Slavery under Arbitrary Power, they put themselves into a state of War with the People, who are thereupon absolved from any farther Obedience, and are left to the common Refuge, which God hath provided for all Men, against Force and Violence. Whensoever therefore the Legislative shall transgress this fundamental Rule of Society; and either by Ambition, Fear, Folly or Corruption, endeavour to grasp themselves, or put into the hands of any other an Absolute Power over the Lives, Liberties, and Estates of the People; By this breach of Trust they forfeit the Power, the People had put into their hands, for quite contrary ends, and it devolves to the People, who have a Right to resume their original Liberty, and, by the Establishment of a new Legislative (such as they shall think fit) provide for their own Safety and Security, which is the end for which they are in Society. What I have said here, concerning the Legislative, in general, holds true also concerning the supreame Executor, who having a double trust put in him, both to have a part in the Legislative, and the supreme Execution of the Law, Acts against both, when he goes about to set up his own Arbitrary Will, as the Law of the Society. He acts also contrary to his Trust, when he either imploys the Force, Treasure, and Offices of the Society, to corrupt the Representatives, and gain them to his purposes: or openly preingages the Electors, and prescribes to their choice, such, whom he has by Sollicitations, Threats, Promises, or otherwise won to his designs; and imploys them to bring in such, who have promised before-hand, what to Vote, and what to Enact. Thus to regulate Candidates and Electors, and new model the ways of Election, what is it but to cut up the Government by the Roots, and poison the very Fountain of publick Security? For the People having reserved to themselves the Choice of their Representatives, as the Fence to their Properties, could do it for no other end, but that they might always be freely chosen, and so chosen, freely act and advise, as the necessity of the Commonwealth, and the publick Good should, upon examination, and mature debate, be judged to require. This, those who give their Votes before they hear the Debate, and have weighed the Reasons on all sides, are not capable of doing. To prepare such an Assembly as this, and endeavour to set up the declared Abettors of his own Will, for the true Representatives of the People, and the Law-makers of the Society, is certainly as great a breach of trust, and as perfect a Declaration of a design to subvert the Government, as is possible to be met with. To which, if one shall add Rewards and Punishments visibly imploy’d to the same end, and all the Arts of perverted Law made use of, to take off and destroy all that stand in the way of such a design, and will not comply and consent to betray the Liberties of their Country, ’twill be past doubt what is doing. What Power they ought to have in the Society, who thus imploy it contrary to the trust went along with it in its first Institution, is easie to determine; and one cannot but see, that he, who has once attempted any such thing as this, cannot any longer be trusted. …
224. But ’twill be said, this Hypothesis lays a ferment for frequent Rebellion. To which I Answer,
First, No more than any other Hypothesis. For when the People are made miserable, and find themselves exposed to the ill usage of Arbitrary Power, cry up their Governours, as much as you will for Sons of Jupiter, let them be Sacred and Divine, descended or authoriz’d from Heaven; give them out for whom or what you please, the same will happen. The People generally ill treated, and contrary to right, will be ready upon any occasion to ease themselves of a burden that sits heavy upon them. They will wish and seek for the opportunity, which, in the change, weakness, and accidents of humane affairs, seldom delays long to offer it self. He must have lived but a little while in the World, who has not seen Examples of this in his time; and he must have read very little, who cannot produce Examples of it in all sorts of Governments in the World. …
228. But if they, who say it lays a foundation for Rebellion, mean that it may occasion Civil Wars, or Intestine Broils, to tell the People they are absolved from Obedience, when illegal attempts are made upon their Liberties or Properties, and may oppose the unlawful violence of those, who were their Magistrates, when they invade their Properties contrary to the trust put in them; and that therefore this Doctrine is not to be allow’d, being so destructive to the Peace of the World. They may as well say upon the same ground, that honest Men may not oppose Robbers or Pirates, because this may occasion disorder or bloodshed. If any mischief come in such Cases, it is not to be charged upon him, who defends his own right, but on him, that invades his Neighbours. If the innocent honest Man must quietly quit all he has for Peace sake, to him who will lay violent hands upon it, I desire it may be consider’d, what a kind of Peace there will be in the World, which consists only in Violence and Rapine; and which is to be maintain’d only for the benefit of Robbers and Oppressors. Who would not think it an admirable Peace betwixt the Mighty and the Mean, when the Lamb, without resistance, yielded his Throat to be torn by the imperious Wolf? Polyphemus’s Den gives us a perfect Pattern of such a Peace, and such a Government, where in Ulysses and his Companions had nothing to do, but quietly to suffer themselves to be devour’d. And no doubt Ulysses, who was a prudent Man, preach’d up Passive Obedience, and exhorted them to a quiet Submission, by representing to them of what concernment Peace was to Mankind; and by shewing the inconveniencies might happen, if they should offer to resist Polyphemus, who had now the power over them.
229. The end of Government is the good of Mankind, and which is best for Mankind, that the People should be always expos’d to the boundless will of Tyranny, or that the Rulers should be sometimes liable to be oppos’d, when they grow exorbitant in the use of their Power, and imploy it for the destruction, and not the preservation of the Properties of their People? …
243. To conclude, The Power that every individual gave the Society, when he entered into it, can never revert to the Individuals again, as long as the Society lasts, but will always remain in the Community; because without this, there can be no Community, no Common-wealth, which is contrary to the original Agreement: So also when the Society hath placed the Legislative in any Assembly of Men, to continue in them and their Successors, with Direction and Authority for providing such Successors, the Legislative can never revert to the People whilst that Government lasts: Because having provided a Legislative with Power to continue for ever, they have given up their Political Power to the Legislative, and cannot resume it. But if they have set Limits to the Duration of their Legislative, and made this Supreme Power in any Person, or Assembly, only temporary: Or else when by the Miscarriages of those in Authority, it is forfeited; upon the Forfeiture of their Rulers, or at the Determination of the Time set, it reverts to the Society, and the People have a Right to act as Supreme, and continue the Legislative in themselves, or erect a new Form, or under the old form place it in new hands, as they think good.
Jefferson is more succinct, as befits a popular declaration:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. 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.
With this admittedly anachronistic background, we turn our attention to a remarkable passage in Don Yitzhak Abravanel’s commentary to the Torah:
האמנם בהיות המלך רע ובליעל צריך לחקור האם ראוי לעמו שימרדו בו ויסירוהו מהמלוכה כיון שהוא אויב חרף ד’ וחומס נפשו כי הנה לא ראינו בדברי חכמי עמנו בזה דבר:
וחכמי האומות חקרו ונתנו בדרוש הזה וגזרו אומר שהוא ראוי לעשותו כמו שעשו השבטים לרחבעם. ואני דברתי בדרוש הזה לפני מלכים עם חכמיהם, והוכחתי שאינו מהראוי ושאין יכולת לעם למרוד במלכות ולהסיר ממשלתו ומלכותו אף שירשיע על כל דבר פשע. ועשיתי על זה שלש טענות:
האחת שהעם בהמליכם מלך כורתים לו ברית לשמור ולעשות דברו ומצותו. והברית והשבועה הזאת איננה בתנאי כי אם אמנה מוחלטת ולכן היה המורד במלך חייב מיתה בין שיהיה המלך צדיק או שיהיה רשע, כי אין העם ממה שיבחין צדקתו או רשעתו ולזה אמר יתברך ליהושע (סימן א’) כל אשר ימרה את פיך יומת, ומזה הצד מהשבועה והברית שהעם כורתים למלכים הם מחוייבים בכבודו ואין בהם יכולת ליסרו ולא למרוד בו:
והטענה הב’ היא. כי המלך בארץ הוא במקום הקב”ה בעולם. ולכן היה מסור אליו היכולת המוחלט להעניש גם שלא כדין כפי צורך שעה ולבטל הנמוס הכללי כמו שהשם יתברך לצורך השעה מבטל הטבע. ועושה נפלאות גדולות לבדו ולכן היה יחיד במלכות כיחוד הקב”ה בעולמו. ומפני זה אמרו רז”ל במסכת ברכות פרק הרואה הרואה מלכי אומות העולם אומר ברוך שחלק מכבודו וכו’. והרואה מלכי ישראל אומר ברוך שחלק מכבודו ליריאיו. והנה במה שאמרו מכבודו הודו שמלכי האדמה יש אתם מכבוד השם יתברך ומעלתו על דרך הדמוי וההעברה. ולכן אין ראוי להמון העם שישלחו יד במלכם להסירו ממלוכה כי היה זה רב ידו לו כשולח ידו בכבוד אלקים וכבר העיד על זה דוד המלך עליו השלום שעם שהיה משוח מלחמה לא רצה לשלוח יד בשאול להיותו מלך ישראל ואמר (שמואל א’ כ”ז) כי מי שלח יד במשיח ד’ ונקה:
והטענה הג’ מיוחדת לישראל והיא כי מי שאין בידו יכלת להמליך ולבחור מלך אין ראוי שיהיה בידו להסירו ממלוכה. ובהיות שבחירת המלך אינה ביד העם כי אם ביד השם יתברך כמו שנאמר שום תשים עליך מלך אשר יבחר ד’ אלקיך בו. לכן לא היה ראוי שהם שלא נתנו לו המלוכה יסירוה ממנו. כי אם השם יתברך שהוא מהקם מלכין. ולכן תמצא שאמר שמואל הנביא לישראל כי בהיות המלך איש ריב ומדון לכל הארץ ופושע מבטן יצעקו אל השם יתברך והוא אמרו (שם א’) וזעקתם ביום ההוא מלפני מלככם אשר בחרתם בו ולא יענה אתכם ד’ ביום ההוא וגו’. הנה לא נתן להם השם יתברך רשות למרוד בו ולהסירו ממלוכה עם היותו בגבול הרשעה כי אם שיצעקו אל ד’ די שליט עילאה במלכות אנשא למען די יצבא יתננה:
So Abravanel was the reactionary, while the unnamed Gentile scholars were centuries ahead of their time.
Abravanel’s first argument is that rebellion is unjustified even from the perspective of Social Contract Theory, but his reasoning is not entirely clear. He begins by asserting without proof that the covenant between the Monarch and the People is absolute and unconditional; this is exactly the position that Locke takes great pains to deny. He subsequently makes the patriarchal assertion that the People are not the ones who may determine the Monarch’s righteousness or wickedness; Locke, again, disagrees:
240. Here, ’tis like, the common Question will be made, Who shall be Judge whether the Prince or Legislative act contrary to their Trust? This, perhaps, ill affected and factious Men may spread amongst the People, when the Prince only makes use of his due Prerogative. To this I reply, The People shall be Judge; for who shall be Judge whether his Trustee or Deputy acts well, and according to the Trust reposed in him, but he who deputes him, and must, by having deputed him have still a Power to discard him, when he fails in his Trust? If this be reasonable in particular Cases of private Men, why should it be otherwise in that of the greatest moment; where the Welfare of Millions is concerned, and also where the evil, if not prevented, is greater, and the Redress very difficult, dear, and dangerous?
241. But farther, this Question, (Who shall be Judge?) cannot mean, that there is no Judge at all. For where there is no Judicature on Earth, to decide Controversies, amongst Men, God in Heaven is Judge: He alone, ’tis true, is Judge of the Right. But every Man is Judge for himself, as in all other Cases, so in this, whether another hath put himself into a State of War with him, and whether he should appeal to the Supreme Judge, as Jephtha did.