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The Unconstitutionality of Using Force to Coerce a State
President James Buchanan stated succinctly in a speech before Congress, December 1860 that the Constitution does not delegate to the Federal government the power to use force against a state:
"The question fairly stated is, Has the Constitution delegated to Congress the power to coerce a State into submission which is attempting to withdraw or has actually withdrawn from the Confederacy? If answered in the affirmative, it must be on the principle that the power has been conferred upon Congress to declare and to make war against a State. After much serious reflection I have arrived at the conclusion that no such power has been delegated to Congress or to any other department of the Federal Government. It is manifest upon an inspection of the Constitution that this is not among the specific and enumerated powers granted to Congress, and it is equally apparent that its exercise is not 'necessary and proper for carrying into execution' any one of these powers. So far from this power having been delegated to Congress, it was expressly refused by the Convention which framed the Constitution.
It appears from the proceedings
of that body that on the 31st May, 1787, the clause '
authorizing an exertion of the force of the whole against a delinquent State"
came up
for consideration. Mr. Madison opposed it in a brief but powerful speech, from
which I shall extract but a single sentence. He observed:
'The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound. '
Upon his motion the clause was unanimously postponed, and was never, I believe, again presented. Soon afterwards, on the 8th June, 1787, when incidentally adverting to the subject, he said: "Any government for the United States formed on the supposed practicability of using force against the unconstitutional proceedings of the States would prove as visionary and fallacious as the government of Congress," evidently meaning the then existing Congress of the old Confederation.
Without descending to particulars, it may be safely asserted that the power to make war against a State is at variance with the whole spirit and intent of the Constitution. Suppose such a war should result in the conquest of a State; how are we to govern it afterwards? Shall we hold it as a province and govern it by despotic power? In the nature of things, we could not by physical force control the will of the people and compel them to elect Senators and Representatives to Congress and to perform all the other duties depending upon their own volition and required from the free citizens of a free State as a constituent member of the Confederacy.
But if we possessed this power, would it be wise to exercise it under existing circumstances? The object would doubtless be to preserve the Union. War would not only present the most effectual means of destroying it, but would vanish all hope of its peaceable reconstruction. Besides, in the fraternal conflict a vast amount of blood and treasure would be expended, rendering future reconciliation between the States impossible. In the meantime, who can foretell what would be the sufferings and privations of the people during its existence? The fact is that our Union rests upon public opinion, and can never be cemented by the blood of its citizens shed in civil war. If it can not live in the affections of the people, it must one day perish. Congress possesses many means of preserving it by conciliation, but the sword was not placed in their hand to preserve it by force."
A strict and reasoned interpretation of the Constitution supports Buchanan's point of view. As discussed previously the majority of the US Constitution up to and including the first ten amendments deals with powers delegated to the Federal Government and rights reserved to the People and the States. It is inconceivable that such a document was framed and a compact entered into that would deny rights and freedom to the people. It is inconceivable that a free state would voluntarily enter into an agreement with another party that authorized force to be used against the smaller member in the event of a disagreement.
The States as free and independent entities, having just won their independence from Britain, certainly did not endow the Federal government with the right to use force to coerce a state. Neither did the Union by mere fact of its existence inherit the right from some unseen and unwritten rule or code of law. The use of force to coerce a state is comparable to one nation invading another to establish their will. Our Western tradition dismisses this form of diplomacy as do all modern codes of relations among states. The invasion and coercion of one people by another is wrong in every instance that history has recorded it. The principles of Jus Ad Bellum that have more or less guided Western relations for centuries forbid this sort of behavior.
The entire notion of forcing another state or nation to abide by the rules of another ought to be as offensive to the American mind as Hitler's invasion of Europe in 1941.
June 2004
North American * Secession and Independence Movements
*Hawaii and Puerto Rico are obviously not part of North America, no offense intended
Active Secession Movements Around the World
One Nation Indivisible? A Study of Secession and the Constitution