Stedman and Hutchinson, comps. A Library of American Literature: An Anthology in Eleven Volumes. 1891. Vol. III: Literature of the Revolutionary Period, 17651787
On the Theory of Secession
By James Madison (17511836)
[Letter to Daniel Webster.Letters and other Writings of James Madison. Published by Order of Congress. 1865.]
DEAR SIR: I return my thanks for the copy of your late very powerful speech in the Senate of the United States. It crushes nullification, and must hasten the abandonment of secession. But this dodges the blow, by confounding the claim to secede at will with the right of seceding from intolerable oppression. The former answers itself, being a violation, without cause, of a faith solemnly pledged. The latter is another name only for revolution, about which there is no theoretic controversy. Its double aspect, nevertheless, with the countenance received from certain quarters, is giving it a popular currency here which may influence the approaching elections, both for Congress and for the State Legislature. It has gained some advantage, also, by mixing itself with the question whether the Constitution of the United States was formed by the people or by the States, now under a theoretic discussion by animated partisans.
It is fortunate when disputed theories can be decided by undisputed facts. And here the undisputed fact is, that the Constitution was made by the people, but as imbodied into the several States who were parties to it, and, therefore, made by the States in their highest authoritative capacity. They might, by the same authority and by the same process, have converted the Confederacy into a mere league or treaty; or continued it with enlarged or abridged powers; or have embodied the people of their respective States into one people, nation, or sovereignty; or, as they did by a mixed form, make them one people, nation, or sovereignty for certain purposes, and not so for others.
The Constitution of the United States being established by a competent authority, by that of the sovereign people of the several States who were the parties to it, it remains only to inquire what the Constitution is; and here it speaks for itself. It organizes a government into the usual legislative, executive, and judiciary departments; invests it with specified powers, leaving others to the parties to the Constitution; it makes the Government, like other governments, to operate directly on the people; places at its command the needful physical means of executing its powers; and, finally, proclaims its supremacy, and that of the laws made in pursuance of it, over the constitutions and laws of the States; the powers of the Government being exercised, as in other elective and responsible governments, under the control of its constituents, the people and legislatures of the States, and subject to the revolutionary rights of the people in extreme cases.
It might have been added, that while the Constitution, therefore, is admitted to be in force, its operation in every respect must be precisely the same, whether its authority be derived from that of the people in the one or the other of the modes in question, the authority being equally competent in both; and that without an annulment of the Constitution itself, its supremacy must be submitted to.
The only distinctive effect between the two modes of forming a constitution by the authority of the people, is, that if formed by them as embodied into separate communities, as in the case of the Constitution of the United States, a dissolution of the constitutional compact would replace them in the condition of separate communities, that being the condition in which they entered into the compact; whereas, if formed by the people as one community, acting as such by a numerical majority, a dissolution of the compact would reduce them to a state of nature, as so many individual persons. But while the constitutional compact remains undissolved, it must be executed according to the forms and provisions specified in the compact. It must not be forgotten that compact, express or implied, is the vital principle of free governments as contradistinguished from governments not free; and that a revolt against this principle leaves no choice but between anarchy and despotism.