You are forgetting something:
“To begin with, the Constitutional Convention had been called by Congress, and Congress, without endorsing the Constitution, also approved its transmission to the states for consideration. Thus, as Madison argued in Federalist 40, the convention had some colorable claim to be operating under the authority of the existing government. Secession, on the other hand, was a wholly unilateral activity by individual states. Moreover, at the convention itself, Madison had pointed to the ratification process as a method of making the Union more solid than it had been under the articles. Because there were more treatylike, the Articles of Confederation were more easily broken. So far as the Articles “were to be considered as a Treaty only of a particular sort, among the governments of Independent states, the doctrine might be set up that a breach of any one article, by any of the parties, absolved the other parties from the whole obligation.” Hence, Madison said, it was indispensable that the new Constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves.” Thus, the Framers would have regarded secession under the Constitution as raising much different issues than under the Articles.”
The Tenth Amendment really adds nothing to Davis’s arguments. To the extent that the states had the power to secede prior to 1789, it was not because such a power was granted by the Articles of Confederation. On the contrary, the Articles purported to be perpetual and irrevocable. Rather, any such power existed only because, under international law, nations have the power to repudiate their treaties. That power is relevant only if the Constitution was a treaty between sovereign nations, as the compact theory insists. So the Tenth amendment argument is really only a restatement of the compact argument, rather than a source of additional support.
In basing his argument on compact theory, Davis built on a weak foundation. The evolution of American concepts of sovereignty was too complex and confused to support confident conclusions about the right to secede. Davis focused on one aspect of the record, ignoring a great deal of evidence with more nationalistic implications. For the argument to work, only did states have to retain some residual sovereignty after ratification, but they had to be the exclusive receptacles of sovereignty. Nether the text of the Constitution nor the weight of the historical record can support such a strong version of state sovereignty.”
--Lincoln’s Constitution, pp. 84-85 by Daniel Farber
Walt
I didn't forget.
Article 2 of the Articles of Confederation reads, "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expresslydelegated to the United States, in Congress assembled."
Under the AoC, the states expressly retained their sovereignty. The Federal government did not even have an executive department. It's titular head, the President of the United States in Congress Assembled was the head of the Legislative body.
Farber is reaching and distorting.
The members of the convention DID have a "colorable claim" to be meeting under the authority of the existing government. But what they were thereby authorized to do was, meet "for the sole and express purpose of revising the Articles of Confederation."
They were authorized to meet to report back recommended changes to the AoC. Any such changes, under the AoC, would have required a unanimous vote of the existing states to be enacted.
The congress did not, and legally could not, authorize them to meet to create a new form of government which would become effective upon ratification by 9 states.
They had a colorable claim to meet for a specifically stated purpose. They exceeded their authorized purpose.
The original compact, the AoC, contains an explicit agreement by the larger states that no change whatever shall be made without the approval of the smallest state, Rhode Island.
Might made right. Rhode Island was not a viable independent nation so it was forced to submit to the will of the others. Military force could not have stopped the 11 who left, and was not needed to coerce NC and RI.
In the civil war, military force was an option. The North was able to impose its will on the South.
If something similar were to happen today, i.e., if a region composing about one third of the union formed another union and seized all the military assets within the area, there would be no viable military option.