Lincoln, and others of a nationalist persuasion, believed the Union was perpetual, and therefore, the States could never withdraw from such an everlasting Compact. Lincoln persisted in advancing this argument, despite the lack of any mention in our Constitution of the Union being “perpetual.”

The argument goes something like this: The first constitution of these United States, the Articles of Confederation, specifically proclaimed the Union as being perpetual, but when that constitution was abandoned in 1788, and our current Constitution instituted, the word “perpetual” was no longer included. However, our new Constitution did have embedded within its preamble a goal of forming a “more perfect Union,” and therefore, the theory goes, “how could a constitution that is ‘more perfect’ be anything but perpetual?”

You must at least admire the inventiveness of Lincoln as he struggled to find some flaw in the Founder’s handiwork that might deny those seceding States their right to withdraw from the Compact. A closer look at the specifics of this argument begins with Lincoln’s inaugural address of 1861 where he first claimed the Union was perpetual:

I hold that in contemplation of universal law and of the Constitution the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination.

The fact that Lincoln believed all governments must be, and were, perpetual did not make it so, and if Lincoln had been around during the American Revolution, following his “logic,” we would all still be Englishmen. One must wonder if Lincoln would have also rejected the secession of 1788, when nine States withdrew from the Articles of Confederation—a compact actually defined as perpetual.

When these nine States withdrew from the Articles of Confederation in 1787-88, they did so despite clearly stated wording that their Union was perpetual. This first constitution referred to their confederation as the “Articles of Confederation and Perpetual Union,” and declared, “the Union shall be perpetual.”

The Founders also required unanimous consent by the thirteen member States before making any changes to the Articles of Confederation. Despite these requirements, and just seven years after its ratification, nine of the thirteen States (obviously not unanimous consent) left this so-called perpetual Union as evidenced by their ratification and establishment of our current Constitution.

Lincoln also said during his inaugural address of 1861:

But if destruction of the Union by one or by a part only of the States be lawfully possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity.

Even if we fully accept Lincoln’s theory of a perpetual Union, allowing States to secede does not change the perpetual nature of the Union—unless of course, all States end up renouncing the Compact. As long as the withdrawal of States did not dissolve the Union, the number of States remaining in the Union would not change its perpetual nature. New States could accede to the Union and other States could secede. A perpetual Union would not demand maintaining the exact same number of States, for if it did, we would have just nine States today (the minimum number required by the Constitution to establish the Union).

Perhaps the first question to ask, is what the Founders meant when they defined the Articles of Confederation as a “perpetual Union?” It could very well be that their use of the term “perpetual” simply meant the Confederation had no set termination date—not that they could never end it. There is nothing in the historical record indicating what the Founders meant by the term “perpetual,” but since they themselves abandoned the one constitution described as such, it’s evidence enough that they did not view our Constitution as everlasting.

In typical Lincoln fashion, Lincoln wanted us to believe the words “to form a more perfect Union” meant the new Union would be perpetual despite the fact there was absolutely no evidence to support his claim. The generally understood meaning of the “more perfect” statement was most likely that the new Constitution was simply an improvement over the old Articles of Confederation—that was, after all, the purpose of the Constitutional Convention in 1787. As with the term “perpetual,” the Founders never offered any definition for their words “to form a more perfect Union.”

The absurdity of Lincoln’s use of the words “to form a more perfect Union” as justification for his political objectives is ridiculous since any politician could take their favorite boondoggle and attempt to justify it with those words. Subsidies? Taxes? World domination? Cash-for-clunkers? Take your pick of what agenda some politician might attempt to rationalize with a twisted interpretation of the constitutional meaning of “a more perfect Union.”

Lincoln the lawyer should also have known that words found in the preamble or headings of an agreement are rarely used in the adjudication of an agreement’s terms and conditions. If preambles and descriptive titles and headings of an agreement help clarify a disputed clause, then they might reasonably be used, but otherwise, preambles and headings are not something upon which the core of a legal argument can be based—all the more so when the preamble does not clarify the issue.

Furthermore, and perhaps the most important point, our current Constitution specifically excluded from its text any mention of the word “perpetual.” It is therefore much more reasonable to conclude that one of the improvements of this “more perfect” Union was the intentional dropping of the term “perpetual.” The Founders were more likely than not acknowledging that, based on their recent experience, governments eventually outlive their relevance to the needs of the people and are destained to be replaced.

If one attempts to speculate what our Founders would have thought about a perpetual Union, it seems reasonable to conclude they might have seen fit to bind their own generation, but it seems highly unlikely they would have intended to bind all future generations. If indeed that is what they had in mind, they would have certainly done so only with the understanding that even if the Union continues on in perpetuity, any party could later withdraw without complaint should they believe it is in their best interest to do so.

Finally, if Lincoln was right, and  governments were meant to be never-ending, then it logically follows that our current Union is illegitimate, and we must revert to the “perpetual” Articles of Confederation. At least the Articles provided for a much smaller and weaker federal government that was subservient to stronger and more independent States—perhaps that wouldn’t be so bad after all.

© 2010, Secession University. Permission to reprint this article in whole or in part is granted, provided full credit is given.

This article by Timothy N. Baldwin, JD. on NewsWithViews.com Not one provision of the constitution delegates this power of secession to the federal government nor prohibits this right from the states. This retention of state sovereignty is clear from the fact that the powers granted to the federal government and the powers retained by the states in the Articles of Confederation and the US Constitution were substantively identical; yet, we see that the states seceded from the Articles and acceded to the US Constitution. Full article