Opinion | Nikki Haley Has Got Secession All Wrong

The problem for Haley, then and now, is that the Constitution does not say that. And if there is a right to secede, as a previous generation of South Carolinians learned the hard way, you won’t find it in our founding documents.

Secession, like its cousin nullification, rests on a mistaken conception of the American union. You see it in the opening lines of Governor Abbott’s news release rejecting the Supreme Court’s ruling that he could not keep federal agents from removing razor wire placed at the border with Mexico. “The federal government has broken the compact between the United States and the States,” Abbott wrote last week. “The Executive Branch of the United States has a constitutional duty to enforce federal laws protecting States, including immigration laws on the books right now.”

This is not new ground, either. The “compact” theory of the American union dates back to the Kentucky and Virginia Resolutions of 1798, issued in defiance of the Alien and Sedition Acts. Drafted, in secret, by Thomas Jefferson and James Madison, the resolutions made two major claims. First, that the Constitution was written as a compact between the states, and second, that the federal government had overstepped its bounds and was now in violation of that compact.

“They asserted,” Stanley Elkins and Eric McKitrick wrote in “The Age of Federalism: The Early American Republic, 1788-1800,”

that the Constitution to which the contracting states had assented delegated certain powers to the federal government, specifically enumerated, all others not so delegated being reserved to the states; that “in case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact, the states … are in duty bound to interpose for arresting the progress of the evil” (Virginia Resolutions); and that with the Alien and Sedition Acts the federal government had exercised a power not only undelegated but “expressly and positively forbidden” in the First Amendment.

It’s too much to say that the resolutions made a splash. The immediate impact, if any, was to strengthen partisan feeling among the opponents of John Adams and the Federalists. None of the other state legislatures took the invitation to issue a concurrence. Still, the “compact theory” of the United States would enter the lexicon of constitutional politics, to emerge again more powerfully during antebellum battles over slavery and federal power.

Which is to say that the nature of the union remained a live question. In 1813, citing compact theory, the Virginia Supreme Court challenged the right of the U.S. Supreme Court to hear cases on federal law originating in state court. In 1816, the Supreme Court replied with its opinion in Martin v. Hunter’s Lessee, in which Justice Joseph Story established the court’s power of judicial review over state decisions and rejected compact theory. “The constitution of the United States was ordained and established,” Story wrote, “not by the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by ‘the people of the United States.’ ”