The Permanence of Federal Unity

Article 1, Section 10 of the United States Constitution limits the possible relations of the states with each other and with other nations by denying to the states certain powers already granted to the national government, intending to reduce the potential conflicts between state and national government. The terms of the article tend to limit a state’s ability to compete with the federal government in the areas of war, foreign affairs, and commerce, particularly the coinage of money. “No State shall enter into any Treaty, Alliance, or Confederation …” continued the principle that the national or federal government would be representative of the states in foreign affairs, but removed the power of the states to challenge that representation.

No State shall, without the Consent of the Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay
Article 1, Section 10, Paragraph 3

The forbidding by the Consitution of compacts between the states or foreign powers, “without the Consent of Congress,” disallows the formation of internal confederacies that might exclude or discriminate against other states, or subvert the Union. Nor may the states individually engage in war without that consent. Congress is to be the liaison between the states as well as between foreign powers.

Each state has individually entered into the contract of the Constitution by ratification, according to Article VII. As a contract, it is perpetual until one or the other party breaches it, or until they both agree to dispose of the contract. This being the case, it makes perfect sense to require the consent of Congress before a state undertakes certain actions endangering the contract.

James Q. Wilson asserts that the “northern victory meant that the union could not be dissolved,”1 and by so saying hints that the war resulted in the unconstitutionality of secession (and of nullification, since that was his topic in mentioning the war) — a conclusion that blatantly goes against the principle of government under and of law, not of violence. It just so happens that the Supreme Court later denied the consitutionality of secession. Chief Justice Wallace, in his opinion on Texas v. White, continually states that there is “no place for reconsideration, or revocation, except through revolution, or through the consent of the States” [emphasis mine]2. The war itself did not mean that the Union could never be dissolved, but only in that particular rebellion did the war hinder dissolution. If the Congress were to consent to a state’s motion for secession today, then the legal precedent of the Civil War would carry no weight, for only in the particular case of rebellion is war the deciding legal factor.

(1) Wilson, James Q., American Government, Second Edition (Brief Version) (D. C. Heath and Co., Lexington, MA), p. 36

(2) Texas v. White, 7 Wall., 726

Copyright © 1990, C. William Cox, Jr.