Smaller Government - Lower Taxes - Personal Responsibility
Last year I taught classes on the Constitution, Our Founding Fathers, Our Founding Principles, The Federal Court System, The Supreme Court, and Judicial Activism. I was struck by how many people want to learn such topics but just don’t know where to go to be educated or how to trust that they will be taught the right stuff. But one question that came up almost every class period and by every group was this: “Do the states have the right to secede.” Well, there were several people at the program who were instructors, and three of us being attorneys (me being the least experienced, and especially with a background in patents). Each instructor who was asked the question gave a different answer. I didn’t know, so that was my answer, although I explained what John Locke would have said and what the answer would be if you look at the Constitution as a Social Contract. I also know what our Founders would have said, as clearly written in the Declaration of Independence.
So, seeing that people were generally interested in the question of secession and now with the fact that almost all 50 states have filed petitions requesting a peaceful secession from the Union (as of Nov. 14, it is reported that 47 states have filed such petitions with the White House - see later), I thought I would review that topic in as much detail as I can. Another reason I think the review is timely and important is because the topic of secession is one that necessarily includes the matter of States’ rights and State sovereignty and those issues are very important right now, especially seeing that our government is becoming the very powerful, concentrated institution that our Founders and the States tried so hard to prevent. It is "working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction until all shall be usurped from the States, and the government of all be consolidated into one."
After a review of our founding principles and some research, I felt fairly confident to write this review. This article will talk about the moral and legal basis of secession - which is addressed pointedly in the Declaration of Independence under the section which lists the sovereign rights held by the individual and which is NOT addressed anywhere in the Constitution. Thus, the right is left to the People and the States, under the 9th and 10th Amendments, respectively. Even more fundamentally, the right of secession comes from the "Compact Theory of Government," the doctrine that holds members of society together in a government system and gives it a legal basis.
That compact theory is a term that was used commonly in the days of our founding, up until the time of the Civil War. It was addressed in the Declaration (governments "derive their just powers from the consent of the governed"), in the Debates in the Constitutional Convention of 1787, in the various state ratification conventions, and in the various articles and declarations of secession adopted by the 11 southern states. In fact, if you read the North Carolina Ratifying Convention notes, the approximately 300 delegates specifically take note of certain fundamental government principles before deliberating on the Constitution drafted in Philadelphia. The first principle is the Compact Theory of government. Our Declaration, while defining our nation's ideals, is actually a secessionist document. It makes the case for the right of the American colonies to sever its political bonds with Great Britain. And what theory did our Founding Fathers use to support their case? The Compact Theory ("Whenever any form of government becomes destructive of these ends" - ie, it's obligation to protect the rights of the people - "it is the right of the people to alter or abolish it, and to institute new government.") Furthermore, the states' rights' doctrines of Nullification and Interposition, articulated by Thomas Jefferson and James Madison, respectively, are based on the compact theory. as well as on our federal system (10th Amendment) and the Supremacy Clause.
In this article, after addressing the basis for secession, I will go into detail about the Civil War to highlight Lincoln's great misconceptions of the Constitution and our underlying government principles, which, as we know, took us down a dark and bloody path...(the abolition of slavery aside). It is important to make this critical analysis because the only case decided by the Supreme Court on the issue of secession - Texas v. White (1869) - flows intimately from Lincoln's administration. His misconceptions profoundly influenced the Chief Justice, Salmon Chase, who wrote that decision. Chase never even went to law school. He received his legal education under the guidance of a politician, US Attorney General William Wirt! Lincoln was good friends with Chase, a Senator from Ohio and a fellow Whig. With the formation of the new Republican Party and the election of 1860, Chase threw his support for Lincoln. In return, Lincoln appointed him as his Treasury Secretary (1861-64). Chase held that cabinet position throughout the Civil War and was indoctrinated with Lincoln's view of secession. In 1864 when Chief Justice Roger Taney passed away, President Lincoln nominated Salmon Chase to the Supreme Court to replace him. Is it any wonder that the Court's decision would perfectly reflect Lincoln's views (while having no basis in constitutional interpretation - which is the function of the Court).
When we think of secession, we are almost programmed to think about slavery, the Confederacy, and the Civil War. But that wasn't the only time American states rose up in secession. But it was the only time it was unsuccessful. The first time the states - or colonies - seceded was in 1776 when they declared their separation from Great Britain with the Declaration of Independence. Again, the Declaration was a secessionist document. We dissolved our bonds of government with the King and Parliament. “We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor."
In the Civil War, the decision was made to sever relations with fellow states. There was a degree of animosity towards fellow states who the southern states felt were actively hostile toward them. Currently, some think of such a decision not out of any animosity to fellow states, as it was prior to the Civil War, but as the only way to sever the relationship and dependency on the federal government.
The Southern states seceded in 1860-61 essentially because of slavery. If it weren’t for the antagonism between the North and South over the issue of slavery, the bigger issue of States’ rights would not have asserted. Slavery was indeed an immoral and unjust institution. It is sad to think that people can treat fellow human beings as nothing more than property. But it was the bigger issue of State’s rights that we must consider when we examine the Southern States’ position with respect to secession and then the response by President Lincoln. In particular, we are talking about the sovereign rights of a state - the right of self-determination, self-protection, and the right to control its destiny. These are all fundamental rights belonging to a sovereign.... All sovereigns. For those of us who study the Bible, we know God is sovereign. He has complete control. We talk about sovereign nations. This means there are powers that a nation has, as a nation, to govern itself properly and protect its borders and people. As we all know, our country is based on individual sovereignty, where powers have been delegated specifically from the individual to the government for it to run the Union properly. That is our Constitution in a nutshell. As the Declaration lays out, our nation is founded - and grounded - on the notion that individuals are the real sovereigns. They are sovereigns in themselves, which is a "self-evident truth" (meaning that no government has to explain this; nature has made it so). As such, individuals have the "unalienable rights to Life, Liberty, and the Pursuit of Happiness." And thus we see the great explanation given by Thomas Jefferson in the second paragraph of the Declaration of Independence of our fundamental rights and our foundation of government:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to affect their safety and happiness."
The Declaration gave the colonies a reason to fight the Revolutionary War for their independence. The Declaration gave the States a reason to form a limited and federal government. It is the reason why our Founders and the States placed such an emphasis on the Compact Theory.
Back in 1860, the states still remembered why they fought for their independence from Britain and why they joined together in a Union (as Ben Franklin advised, for mutual benefit – “Join or Die”). They joined for security and on the basis that each state would be on equal footing. They would enjoy the protections and benefits of the Constitution – EQUALLY. The issue of slavery aside, the Southern States dissolved their association with the Northern States because the association had become hostile and had become destructive of the very reasons they joined together in the first place. They seceded for the same right of self-determination and self-government that our earlier Americans asserted for our independence from Great Britain.
In Lincoln’s mind, he was preserving the Union, but the reality is that he declared war – a bloody, costly war – on a people who peacefully, legally, and perhaps rightfully severed relations with a government that had become hostile to them and their interests, and no longer served them equally or fairly.
I am a Northerner. And I don’t apologize for reaching that conclusion about Lincoln’s decision to invade the South. Growing up in the North, we were taught that Abraham Lincoln was the greatest President we ever had. He saved the Union and freed the slaves. We were taught that the South was wrong and brought the Civil War on themselves. We were taught that Lincoln was great because of his determination to preserve the Union at all costs. As mentioned earlier, I did some research in preparing for this review, and I’m glad I did. I certainly learned a lot. I learned that much of what I was taught in school was wrong and really just the government’s position on the subject. The adoption of Lincoln’s stance on saving the Union and abolishing slavery is clearly the position the government wishes to emphasize with our children. I wish schools could be more intellectually honest and allow the full discussion on the issues involved in secession and the Civil War. I think it’s a shame that children indoctrinated in the public school system are so ill-equipped to appreciate the values and principles on which our country and government are based and for the most part, end up going through their entire life remembering the limited “talking points” on history and social studies that they learn in school.
In preparing to write this review, I shared what I learned with my husband, who is also a Northerner. Even after hours of discussion and debate, he still believes that Lincoln was justified in invading the South. He believes that slavery needed to be ended and if the South wasn’t willing to do it, then the North had every reason to (under the Declaration of Independence). He respects Lincoln for having the courage to do that. In his mind, the ends justified the means.
I guess you can say that we have a House divided at home now.
Personally, when referring to matters of liberty and the Constitution, I find it offensive to hear people use terms such as “the ends justified the means.” It means that we are compromising on core principles. It simply means they don’t value the rule of law as laid down by our Founders. The laws are supposed to protect us equally and under all circumstances - especially in trying times. FDR had that mentality of "the ends justify the means" (and we had the internment of Japanese citizens and something most Americans don't know - the seeds of the "enemy combatant" legal fiction that now allows the government to go after US citizens). Lincoln had that mentality (and we had the suspension of habeas corpus for American citizens and the disastrous precedent that our government can put its own survival over the interests of the states and the People - that it doesn't have to observe or value the sovereign rights of citizens or states as laid out in the Declaration to "alter or abolish" their government, or at the very least to peacefully dissolve their political bonds so they can govern themselves more appropriately). Even Teddy Roosevelt had that mentality. And most of all, Barack Obama embraces this mentality (retribution and new social order justify the fundamental transformation of our government, even though the process of altering our Constitution is clear). Each president who adopts that mentality - and puts ambition over protections provided in the Constitution - perverts a fundamental principle of law upon which our country was founded.
Martin Niemoller, a German Pastor who fell out of favor with Adolf Hitler and was imprisoned at the Dachau concentration camp for several years, wrote:
“First they came for the Socialists, and I did not speak out — Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out – Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out – Because I was not a Jew.
Then they came for me — and there was no one left to speak for me.”
As my priest once said: “You can’t cherry pick what you want to believe in or not. You have to stand up for the whole package.” (He was talking about those who claim to be Christians but don’t want to acknowledge that abortion and the destruction of a fetus is against God’s law). Liberty is a “whole package.” There are many elements to it and to pervert one aspect is to diminish its over-all worth.
One day you’ll wish you took the time to stand up for liberty, even in if it didn’t concern you personally at the time. As John Adams said in 1775: "A Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost forever."
Just recently, the residents of all 50 states have filed petitions with the White House requesting permission for their states to peacefully secede from the Union and to establish a new government. The movement began on November 7, the day after the election, when Louisiana residents filed the first petition. They represent people who are fed up and who feed disenfranchised by their government and they want to exercise their rights under the Declaration of Independence to dissolve their bonds with government and establish their own, new government. Since that date, the remaining 49 states have joined in, with Vermont, Maine, and Washington being the last to file.
[For more info, see: http://dailycaller.com/2012/11/13/petitions-seeking-white-house-app... and http://freedomoutpost.com/2012/11/secession-movement-sweeps-all-50-... and http://www.wnd.com/2012/11/now-many-states-want-to-secede-from-u-s/ ]
The Louisiana petition, which served as a pattern for many of the new states, simply reads: “We petition the Obama administration to: Peacefully grant the State of Louisiana to withdraw from the United States of America and create its own NEW government".... followed by two clauses from the Declaration of Independence. The Texas petition was much more creative. Texas articulated its argument for secession this way: "The Texas petition explains itself this way: “The U.S. continues to suffer economic difficulties stemming from the federal government’s neglect to reform domestic and foreign spending. The citizens of the U.S. suffer from blatant abuses of their rights such as the NDAA, the TSA, etc. Given that the state of Texas maintains a balanced budget and is the 15th largest economy in the world, it is practically feasible for Texas to withdraw from the union, and to do so would protect its citizens’ standard of living and re-secure their rights and liberties in accordance with the original ideas and beliefs of our Founding Fathers, which are no longer being reflected by the federal government.” [https://petitions.whitehouse.gov/]
Of course we know how the White House will respond to those petitions: "There is no right of a state to secede from the Union." But we won't buy it. The current administration might even respond with an Executive Order, making preparations to establish martial law should the states get any more serious than a petition on the White House government site. Glen Beck thinks that it is an insane idea to file such a petition with the White House. “Now how do you think that’s going to work out?” Beck asked on his radio show. “I mean, how dumb do you have to be? Really? You’re putting your name on a list that goes directly to the White House, and you’re putting your name on a list and saying, ‘yeah I think we should secede, I think there should be a Civil War.’”
As will be discussed below, the states don't need to ask permission from the federal government when they wish to dissolve their political bonds. The creators do not have to ask their creation for permission.
I'm not analyzing the reasons for the petitions in this article, but I would love for that discussion to follow. I imagine that part of the reason is the current economic situation and the economic oppression and inherent unfairness that comes from over regulation and taxation. I also imagine that other reasons would be very similar to the situation between the colonies and King George prior to 1773. Many of 27 reasons listed by Jefferson as a "history of injuries and usurpations" of the rights held by the colonists by King George mirror the same "usurpations" by our very own government.
Ron Paul teaches that secession is a very American principle. As he says: "For those who say secession is treasonous or has been settled by the Civil War, then I say 'You don't know your history.'" In a short video that he put out in the wake of the secession petitions, Dr. Paul spoke:
"All the states that entered the Union believed they had a right to secede. In fact, part of New England wanted to secede very early on and no one complained. Thomas Jefferson and Patrick Henry supported the right of secession and Henry even suggested that Virginia leave the Union.
It is very American to talk about secession. It is very much an American principle. What about all the strong endorsements we have given over the past decade or two to those republics which seceded from the Soviet Union. We were delighted for them. We never said 'No, they don't have the right to do that.' We never said it was treacherous. And President Woodrow Wilson dragged us into World War I because he argued that e every country ought to have the right of self-determination. Why do we think differently when it comes to our country?
Secession is a good principle. Just think of all the benefits that would have come the past 230 years or so if the principle had been more popular. The government would have been restrained not to overburden the states with too much federal rules and regulations. But since the Civil War, the government has grown by leaps and bounds and we have indeed suffered the consequences.
We came together voluntarily and we should be able to separate voluntarily. You know, it's a shame that for so long now we've been indoctrinated with the Pledge of Allegiance - "One Nation indivisible..." Most people don't know who wrote the pledge. It was Francis Bellamy who wrote it in 1892. Bellamy was an avowed socialist who wanted to put the concept of indivisibility into the pledge to the flag.
I think we need a discussion about secession and what the state's rights are. Right now we are sick and tired of it all and there will come a time when people will take secession a lot more seriously. There will come a time when the federal government will no longer be able to deliver and that day will come when the dollar collapses."
In addition to secession, the other concepts which we need to embrace strongly at this point in time include the following:
(i) States’ Rights and State Sovereignty; the need for a robust federalist system to curb the powers of the federal government;
(2) The right of people to limited government and limited intrusion into their lives and upon their liberties, including their right to property,
(3) The right of people to expect their states to stick up for their liberties and their property rights; AND
(4) Nullification - the right and duty of each state to review laws, policies, and decisions of all branches of the federal government to make sure they are within the constitutional limits of power. If not, the state must declare it null and void (unconstitutional) and refuse to enforce... for the purpose of protecting individual liberty. [I have addressed Nullification in many previous articles that I have written - see http://forloveofgodandcountry.wordpress.com
I mention property rights specifically because our Founders have warned us that If we want to surrender our human liberties to our government, then letting it control our property is the surest way to do that. There is a reason that Jefferson included the 3 most fundamental liberties as co-equals: “Life, Liberty, and Pursuit of Happiness” (ie, “Property”) in the charter of our free nation. A person can’t enjoy Life without the rights to enjoy his property and other liberties. A person can’t enjoy his property without his other liberty rights. And a person can’t enjoy his Liberty if he can’t enjoy his property and the right to live his life freely (without interfering with another’s rights). Government doesn’t need to take physical title to a person’s property without rendering it useless or meaningless. Ronald Reagan spoke eloquently on this in his 1964 speech “A Time for Choosing.
QUESTION: Do you think a State has the right to secede from the Union ?
I ask this just to get you thinking of your personal position on the topic. While you are at it, reflect upon the reasons for or against it, as you believe them to be.
QUESTION: Why do I believe a review on the topic of secession is important ?
–> To reflect upon what we, as a people and as a state, hold most near and dear, and what we are willing to tolerate from a federal government. We need to decide when enough is enough. We have to decide where to draw the line in the sand as to how much government intrusion in our lives is too much.
–> To reflect how far we’ve lost touch with the appreciation of liberty that our founders and forefathers had. Remember how the colonists wouldn’t even tolerate a very minor tax on tea. As James Madison said: “The people of the United States owe their independence and their very liberty to the wisdom of protesting against a minute tax on tea and recognizing the underlying oppression in that tax.”
–> To remind ourselves of the importance of the 10th Amendment. As South Carolina wrote in its Ordinance of Secession of Dec. 20, 1860: “By this (US) Constitution, certain duties were imposed upon the several States, and the exercise of certain of their powers was restrained, which implied their continued existence as sovereign States. But to remove all doubt, the 10th Amendment was added. Thus was established, by compact between the States, a Government with definite objects and powers, limited to the express words of the grant. This limitation left the whole remaining mass of power subject to the clause reserving it to the States or to the people, and rendered unnecessary any specification of reserved rights.”
*** Remember this term “compact.” South Carolina specifically referred to the Union as a “compact between the states.” Remember this term “compact.”
Can we put off this discussion? I don’t think so. I think if people can simply grasp the government’s position on the Commerce Clause and healthcare (see the discussion of Wickard v. Filburn, later) alone and its intention to control and regulate people and their property, then they just might begin to understand the urgency and the Constitutional crisis we are in with respect to our government. And then to realize, as we here in North Carolina have had to do, that our own State has no intention of sticking up for its people – for individual liberty. The overwhelming number of people in North Carolina, across party lines, are skeptical of the of the healthcare bill (the Patient Protection and Affordable Care Act , or PPACA, or “Obamacare”) and don’t want the federal government telling them to buy its healthcare plan. Both houses of the NC Assembly passed a bill, very similar to Virginia’s “Healthcare Freedom” Act, which would exempt North Carolinians from the federal healthcare bill, but NC Governor Beverly Perdue vetoed it. There were enough votes to over-ride the veto, but taking her cue from President Obama, Perdue called Democratic house members to the Governor’s mansion the evening before the over-ride vote, and then miraculously, certain of those house members who had gone on record as saying that the federal healthcare bill is a “bad bill” and citizens needed to be protected from it and had in fact voted for the NC “Protect Healthcare” Bill (H.B. 2) switched their votes the following afternoon. If North Carolina had valued her sovereignty and would have been willing to stick up for its 10th Amendment powers, then Governor Perdue would have signed that bill with pleasure and in fact, would have been proud to do so.
QUESTION: What if we don’t stand up for Sovereignty and States’ Rights NOW ??
–> There may come a time, soon, when people begin to seriously talk about secession… as a solution.
–> We don’t want to get to that point. Secession is a desperate act. A last resort. It can potentially lead us down the road to another bloody revolution.
–> Before we even get to that point, however, we must know that conservative leaders will be targeted by the government as “Rightwing Extremists” (See report issued by Janet Napolitano and Homeland Security on April 7, 2009 entitled: “Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment”) AND our second amendment right to bear arms will likely be taken away because of the threat of domestic violence and an “imminent threat to the security of the nation.” The President will no doubt cite Article IV, Section 4 for authority to do that.
Article IV, Clause 4 reads: ” The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”
QUESTION: How many times have we asserted our individual liberties, with respect to government ?
–> Only once, in 1787 (and then in the state ratifying conventions). The English have done it many times (beginning with the Magna Carta in 1215 to the English Bill of Rights, 1689). Each time they were granted greater liberties and government was limited. Maybe Americans should give that some thought.
QUESTION: How many times have the States asserted its liberties with respect to a central or federal government?
–> Twice. The American Revolution & the Civil War. The colonies were established as sovereign entities. They soon adopted constitutions and established themselves as independent, sovereign states (almost as 13 independent countries in the New World). The Southern States were stripped of sovereign power after the Civil War, and in punishing them, all of the States eventually lost the one thing that was valued most of all in our Founding – their independence. The trend since has been to strip them further of their rights and power. Rather than the autonomous States who carried such weight and power in the design and planning of our nation, they are now little more than a uniform group of states, subservient to the federal (now a “national”?) government because of the massive growth and concentration of power and beholden to it for funding. In short, the states have grown weaker… infinitely weaker. And this erodes a very important foundation for our individual liberties – “federalism.”
I remember one discussion I was having regarding the 14th Amendment and how it has been used to neuter the States in the 20th century. The 14th Amendment, a Civil Rights amendment, was intended to put the full force of federal law on the Southern States to give the freed slaves the full rights and privileges of citizenship. Today, it is used to strip the states of the power of regulating in many areas it had traditionally been allowed to regulate (especially under its Police Powers – the power to regulate for the health, safety, welfare, and morality of its people) – including in the area of education (prayer and morality out of school), religion (separation of church and state), association, abortion, sodomy, and criminal rights. As the gentleman explained: “The States can’t be trusted.” The gentleman I was having the discussion with feels the 14th Amendment was and continues to be an important amendment. (I believe it has outlived its purpose). As the gentleman explained: “The States can’t be trusted.” My response was: “The federal government can’t be trusted but no one is trying to limit its power with an amendment !!”
–> The Civil War, which Lincoln touted as a “new birth of freedom” was actually the beginning of our demise. We lost much of our liberty. For with the Civil War, this country destroyed the very foundation upon which our country could most effectively curb tyranny – the right of states to remain sovereign, free, strong, and independent states… to retain those powers, so numerous and indefinite, “which extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and property of the People, and the internal order, improvement, and prosperity of the State.” (James Madison, Federalist No. 45) This was our Tenth Amendment.
In the aftermath of the Civil War, the era of big, centralized government was ushered in.
QUESTION: Who makes those decisions now as to which areas a State can regulate?
–> Those decisions are usually made (often with strong-arm tactics) by a Constitutionally-abusive president such as FDR or Obama – those blinded by the need for socialist policies. Or they could be made by the nine members of the Supreme Court – 4 or 5 of whom have no allegiance to the words and spirit of the Constitution. (See Wickard v. Filburn, which will be discussed later)
I think it’s important for a people every hundred years or so to put themselves in the position that the feudal barons were in back in 1215 when they forced King John to sign the Magna Carta and especially to put themselves in the position that our founding colonies were in when they were standing up for their liberties and trying to establish that perfect formula to protect those liberties with respect to government that historically would always tend to become tyrannical and destructive of the ends for which it was established. The gradual encroachment on human liberties over the years has been staggering and we’ve sat back and allowed it to happen. How many colonists do you think would have let that happen? The British asserted their rights in 1215, then in 1628 (Petition of Right), then in 1679 (Habeas Corpus Act), and then in 1689 (English Bill of Rights). Each time they exercised their voice, the King or Parliament drafted a document limiting the powers of government. Each of the documents listed above are a recognition of individual liberty and a promise to limit government with respect to the rights held by the people. We have the Constitution and the Bill of Rights, and to this day, because of the progressive and socialist nature of government and the progressive nature of the federal courts, we really have no idea what our actual rights are with respect to government. This should never be tolerated.
Let us remember the days when the colonists wouldn’t even tolerate a very minor tax on tea. As James Madison said: “The people of the United States owe their independence and their very liberty to the wisdom of protesting against a minute tax on tea and recognizing the underlying oppression in that tax.”
And those days, the States were responsive to their people. When the people rallied and protested over the Stamp Act and the small tax on tea, as violating their natural rights, the States, one by one, in Convention, called for a declaration of independence from Britain. Since when did the States become the very puppets of a government that was supposed to “serve” them? Since when did the States become willing puppets of a government that disregards their very sovereignty? It’s no wonder that the bully in DC continues to be one.
Before examining the question of whether a state has the right to secede from the Union, consider these quotes:
“The principle, on which the war was waged by the North, was simply this: That men may rightfully be compelled to submit to, and support, a government that they do not want, and that resistance, on their part, makes them traitors and criminals. No principle, that is possible to be named, can be more self-evidently false than this or more self-evidently fatal to all political freedom. Yet it triumphed in the field, and is now assumed to be established. If it really be established, the number of slaves, instead of having been diminished by the war, has been greatly increased… For a man, thus subjected to a government that he does not want, is a slave. And there is no difference, in principle – but only in degree – between political and chattel slavery. The former, no less than the latter, denies a man’s ownership of himself and the products of his labor; and asserts that other men may own him, and dispose of him and his property, for their uses, and at their pleasure.” – Lysander Spooner (Nineteenth-Century lawyer, abolitionist, entrepreneur)
“The Union was formed by the voluntary agreement of the States, and in uniting together, they have not forfeited their Nationality, nor have they been reduced to the condition of one and the same people. If one of the States chose to withdraw its name from the contract, it would be difficult to disprove its right of doing so…” -– Alex de Tocqueville, Democracy In America
” Could our Founding Fathers have ever forbade the right of secession, or ever dreamed of secession as illegitimate, when it was precisely their own righteous secession, the escape from British abuse which literally forged the steely bonds of their cause – those which actually bound our Founding Patriots together when they mutually pledged to each other ‘our Lives, our Fortunes and our sacred Honor’?” — Thomas Paine, June 25, 2009, in his article “The Truth About Session”
“If the Declaration of Independence justifies the secession from the British empire of 3,000,000 of colonists in 1776, we do not see why it would not justify the secession of 5,000,000 of Southerners from the Federal Union in 1861.” –- New York Tribune, December 17, 1860
“The American people, North and South, went into the [Civil] War as citizens of their respective states, they came out as subjects … What they lost they have never gotten back.” -– H.L. Mencken
“If there be a principle that ought not to be questioned within the United States, it is that every man has a right to abolish an old government and establish a new one. This principle is not only recorded in every public archive, written in every American heart, and sealed with the blood of American martyrs, but is the only lawful tenure by which the United States hold their existence as a nation.” — James Madison
“To deny this right [of secession] would be inconsistent with the principle on which all our political systems are founded, which is, that the people have in all cases, a right to determine how they are governed.” — William Rawle, the author of the leading constitutional-law treatise of the early-nineteenth century, A View of the Constitution of the United States (1825)
QUESTION: What does the word “Secession” mean ?
–> A separation from a community of a part of that community.
–> One party’s voluntary withdrawal, or disassociation, from another party or from a Union of parties
–> Secession necessitates no attack, no usurpation, no threats, no takeover, no violence. It is a peaceful act. Violence only enters the picture when there is a tyrant ruler. Coercion and armed force are the favorite instruments of such rulers to halt a secession from their corrupt empire.
QUESTION: What did our Founders say about secession? What about our founding principles?
–> Our Founders understood that certain fundamental rights are inherent in man because of his relationship with the Creator. They reasoned: “How can we give consent to a government to make rules for us if we don’t have the original power to make rules for ourselves?“
–> This is known as the Individual Sovereignty doctrine, advanced by the great philosopher on government, John Locke.
–> It was the sovereign people (“We the People”) for who the Constitution was created.
–> If a sovereign people can create a government, then they can also dissolve it.
As our Founders understood, certain fundamental rights are inherent in man because of his relationship with the Creator. They reasoned: ‘How can we give consent to a government to make rules for us if we don’t have the original power to make rules for ourselves?“ This is known as the Individual Sovereignty doctrine, advanced by the great philosopher on government, John Locke. It was the sovereign people (“We the People”) for who the Constitution was created.
In order to understand the premise for John Locke’s theory on government, ask this question: Which comes first - individuals or governments? We know the answer. Individuals, with certain fundamental sovereign rights, form into communities. They delegate their power over their rights and property to a local government to protect them. As John Locke explained: “Individuals have sovereign rights which no government can take away. (Government can only exercise power on behalf of the people). As such, government is morally obliged to serve people, namely by protecting life, liberty, and property.”
John Locke was one of the first great thinkers of the Enlightenment Era (or age of Reason). He believed in the sovereignty of the individual – the inherent rights of the individual to self-protection. Locke understood that the individual has natural rights to life, liberty and property, and therefore has the right to protect them. It is from this basic premise that he explored the role of government. We can read his views in his extensive essays entitled The Two Treatises of Government, published in 1688 and 1689. In the first treatise, Locke refutes the belief in the divine right of Kings. It is the second treatise, we see the essentials of Locke’s political theory. In essence, he builds on Cicero’s “Natural Law” theory where man derives his existence and therefore his natural rights from God. Locke takes the theory one step further and applies it to the intended role of government.
So Locke’s fundamental assertion, as was Cicero’s, is that the state of nature has human beings enjoying most of their natural rights without the state. That is, the rights are not granted by the state. The fact that property could be freely exchanged, sold, or accumulated in that natural condition led Locke to argue that governments ought not interfere with most aspects of the economy and society. Moreover, no people living in a natural state of freedom would consent to have all their liberty taken away. Liberty is not the government’s to take away. Therefore, any government requires the consent of the people to “protect the rights of life, liberty, and property” that the people themselves have the natural authority to do. (The right of self-protection). This, therefore, makes government ‘conditional.’ It also dictates that the role of the state ought to be limited to protecting life, liberty, and property from those few predatory members of the human race whom Locke referred to as the “quarrelsome and the contentious.” According to Locke, everyone is entitled to live once they are created (Life), everyone is entitled to do anything they want to so long as it doesn’t conflict with the first right (Liberty), and everyone is entitled to own all they create or gain through gift or trade so long as it doesn’t conflict with the first two rights (Property). Since the role of government is limited, its power should also be limited. Locke proposed that government be limited through a separation of powers scheme, where each branch checks the other.
It is easy to see how our Founder’s were influenced by John Locke when designing our government and drafting our founding documents.
QUESTION: What is the purpose of a constitution?
–> Locke wrote that the decision by a group of people to delegate authority to a government creates a constitution, a written agreement that sets limitations on government power and represents the consent of the people. Laws established for the community naturally flow from this initial agreement and therefore a constitution is superior to ordinary laws created by any legislature. Locke’s idea of government is one of a limited constitutional regime.
Locke saw constitutions as “social contracts” or “social compacts.”
QUESTION: What is a “social contract” (or “social compact”)?
–> A social contract is an agreement intended to explain the appropriate relationship between individuals and their governments. People form an implicit social contract, ceding their natural rights to an authority to protect them from abuse. According to the dictionary, a social contract (aka, social compact) is a voluntary agreement among individuals by which, according to any of various theories, such as those put forth by Hobbes, Locke, or Rousseau, organized society is brought into being and invested with the right to secure mutual protection and welfare or to regulate the relations among its members.
Locke saw constitutions as social contracts or social compacts. He explained that people escape their primitive state by forming into communities and thus entering a social contract under which the state provides protective services to its citizens. Locke regarded this type of contract as revocable. A government depends on the consent of those who are governed, which may be withdrawn at any time, thus dissolving the agreement and thereby invalidating the government. [In the case of a federation of states, for example, one state would no longer “give consent” and therefore dissociate itself from the contract, thereby dissolving its bond with the other states].
In his Republic, Plato introduced social contract theory. In a scenario involving Socrates, Socrates refused to escape from jail to avoid being put to death. He argued that since he had willingly remained in Athens all of his life despite opportunities to go elsewhere, he had accepted the social contract (thus he agreed to abide by the local laws, including submitting to the justice process). The idea of the social contract is one of the foundations of the American political system. This is the belief that the state only exists to serve the will of the people, and they are the source of all political power enjoyed by the state. They can choose to give or withhold this power. The origin of the term social contract can be found in the writings of Plato. However, English philosopher Thomas Hobbes expanded on the idea when he wrote Leviathan in response to the English Civil War. In this book he wrote that in the earliest days there was no government. Instead, those who were the strongest could take control and use their power at any time over others. Hobbes’ theory was that the people mutually agreed to create a state, only giving it enough power to provide protection of their well-being. However, in Hobbes’ theory, once the power was given to the state, the people then relinquished any right to that power. In effect, that would be the price of the protection they sought. John Locke, on the other hand, saw the relationship as still favoring the individual and the rights inherently bestowed on him. He believed that revolution was not just a right but an obligation if the state abused its given power against the individual.
Thomas Paine, in his Rights of Man, wrote:”The fact therefore must be that the individuals themselves, each in his own personal and sovereign right, entered into a contract with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.”
This all makes sense. Local governments and social contracts/compacts make sense. A local government can provide services easier than individuals who must go to work and do other things. What is your fundamental liberty worth when you can’t travel because you have to stay around to guard and protect your property? So, some government is necessary for maximum liberty. But the individual is careful to make sure that only certain services are delegated. As Madison explained in The Federalist No. 45, power was always meant to remain closest to the people. He wrote: ” The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and property of the people, and the internal order, improvement, and prosperity of the state.”
But a federal or central government was something different. It is a government that isn’t close to the people. And our Founders understood that. For that reason, the Constitution was written for We the People to outline exactly what powers We are willing to delegate away – “in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” And the Federalist Papers explain the scope of those powers. They are very limited and specifically listed. The Constitution was ratified by the States in reliance on such an understanding.
QUESTION: Who are the parties to the social contract / compact that is our US Constitution?
–> The states, acting in the interests of “We the People.” Citizens selected their delegates who then debated the decision to ratify or not ratify the Constitution and join with fellow states to delegate certain of their powers to a federal government. The Federal government was – is – NOT a party to the compact. In fact, it wasn’t even actually created at the time many of the states signed of the Constitution. The government, therefore, has no enforcement power over the compact. Only the parties – the states – do.
QUESTION: How can the social contract / compact be dissolved?
–> In every compact or contract between two or more parties, there is mutual obligation. The failure of one of the contracting parties to perform a material part of the agreement entirely releases the obligation of the other. This, in fact, was the position of the state of South Carolina in its Declaration of Secession. It went one step further and said that where no arbiter is provided, each party is left to his own judgment to determine the fact of failure on a contracting party, with all its consequences.
–> There are those who oppose this view and say that in order to break a social contract/compact, all parties must agree.
–> Note that Secessionists analogized the Constitution to a treaty, not a contract – on the ground that each state was more like a sovereign nation than a human being. And under treaty law, unilateral rescission is permissible.
–> As we’ll see in Texas v. White, the only Supreme Court case to address the issue of secession, the court included the federal government as a party to the social compact and also supported the view that a state could not be secede unless the federal government and the other states agreed to it.
John C. Calhoun, representative from South Carolina and Vice President under John Quincy Adam said: “The error is in the assumption that the General Government is a party to the constitutional compact. The States formed the compact, acting as sovereign and independent communities.” Calhoun, for one, was a strong proponent of slavery and pushed for secession on that issue up until his death in 1850. For years, he urged the North to “stop agitating the slavery question.” He predicted the Civil War. On the floor of the Senate in February 1837, he asserted that slavery was more a “positive good” than it was a “necessary evil.”
Calhoun was also a strong believer in states’ rights and nullification (states could declare null and void federal laws which they held to be unconstitutional), a doctrine championed by Thomas Jefferson and advocated by the Anti-Federalists. Calhoun wrote an essay in 1828 entitled “South Carolina Exposition and Protest,” in which he argued that a state could veto any law it considered unconstitutional.
In 1850, he published a book called “Disquisition on Government,” in which he argued that a written constitution would never be sufficient to contain “the plundering proclivities of a central government.” He argued that some mechanism is necessary for a consensus among the citizens of the states to limit the actions of Congress when they exceed constitutional boundaries. Consequently, Calhoun proposed giving citizens of the states veto power over federal laws that they believed were unconstitutional. He called this consensus of citizens the “concurrent majority.” This veto power would be supported by Jefferson’s nullification doctrine. To Calhoun (and Jefferson), states’ rights meant that the citizens of the states were sovereign over the federal (he called it a “central”) government which they had created as their agent. He also argued that since States are sovereign over the government and possess the right of self-determination and self-preservation, they inherently have the right of secession.
[Note: Between 1937 and 1995, not a single federal law was declared unconstitutional by the Supreme Court. Not one piece of legislation was seen as exceeding the scope of Congress's commerce power. So much for the argument made in Marbury v. Madison(1804) that the federal courts have the power of "judicial review" to hold the branches of Congress and the states to their constitutional limits (in order to, of course, to protect the delicate balance of power and to safeguard liberty). Instead, the courts have allowed, even endorsed, the federal government to expand beyond its enumerated responsibilities. The progressive Court of the 20th century has gradually allowed the government to encroach on individual liberty and by expanding and re-interpreting the Constitution, has denied the American people the ability to limit their government.]
Calhoun believed the doctrine of nullification could lead to secession and in fact that very scenario almost played out in 1832.
In 1832, there was a major confrontation between South Carolina and the government over state interests and sovereignty. It is referred to as the “Nullification Crisis.” South Carolina believed that certain federal tariffs were unconstitutional and it passed an ordinance that nullified” them. The tariffs at issue favored northern manufacturing interests over southern agricultural concerns. The South Carolina legislature declared them unconstitutional and passed an ordinance nullifying them. (Such tariffs you might recall, were cited as one of the reasons for the secession of several of the southern states). In response to the South Carolina’s nullification measure, Congress passed the Force Bill, which empowered the President to use military power to force states to obey all federal laws. President Andrew Jackson then sent US Navy warships to Charleston harbor. South Carolina turned around and nullified the Force Bill. Tensions cooled after both sides agreed to the Compromise Tariff of 1833, proposed by Senator Henry Clay to change the tariff law in a manner which satisfied Calhoun, who by then was in the Senate.
We have looked at the reasons individuals establish governments, we have looked at local government vs. federal governments, we have studied the concept of “social contracts,” we have reviewed our founding principles and reflected about what our Founders had to say about secession and the right to dissolve bonds with government. But just in case there are those who are still unsure as to whether a state has the right to secede from the Union, we can look at legal authority.
QUESTION: Does a State have the legal authority to secede from the Union?
–> Article VII sets out the provision for original ratification, and Article IV empowers Congress to admit new States. But there is no provision of the Constitution that authorizes a state to leave the Union or bars it from doing so. The Constitution does not say anything about states leaving.
–> There is no specific power granted to the federal government to prevent or reverse secession and the power to secede is not specifically denied to the states. Therefore, therefore that power is retained by the states, as guaranteed by the 10th Amendment.
–> The Declaration of Independence is itself a document justifying secession.
–> Texas v. White (1869). The Supreme Court said “Yes,” but not unilaterally. (However, the decision has been put into question by the actions of President Grant and the government in setting conditions for the southern states to be “re-admitted” to the Union).
QUESTION: Which was the first state to secede from the Union?
–> South Carolina. It adopted its Ordinance of Secession on Dec. 24, 1860.
South Carolina’s Declaration of Secession is noteworthy among the declarations of the seceding states for the following reasons:
1). It acknowledges the state’s earlier intention (in 1852) to secede from the Union: “The people of the State of South Carolina, in Convention assembled, on the 26th day of April, 1852, declared that the frequent violations of the Constitution of the United States, by the Federal Government, and its encroachments upon the reserved rights of the States, fully justified this State in then withdrawing from the Federal Union; but in deference to the opinions and wishes of the other slaveholding States, she forbore at that time to exercise this right. Since that time, these encroachments have continued to increase, and further forbearance ceases to be a virtue.”
2). It is structured very similarly to the Declaration of Independence written by Thomas Jefferson. “To the remaining United States of America and to the nations of the world, South Carolina declares the immediate causes which have led to this act (secession).” (Also see the language above)
3). It explains the great principles asserted by the Colonies (States), as reflected clearly in the Declaration of Independence: (a) the right of a State to goverm itself; and (b) the right of a people to abolish a Government when it become destructive of the ends for which it was instituted. The fact is that each state was recognized by the mother country in the Treaty of Paris (1793) as a FREE, SOVEREIGN AND INDEPENDENT STATE.
4). It gives a very good overview of the history of the colonies:
“In pursuance of their Declaration of Independence, each of the thirteen States proceeded to exercise its separate sovereignty; adopted for itself a Constitution, and appointed officers for the administration of government in all its departments – Legislative, Executive and Judicial. For purposes of defense, they united their arms and their counsels; and, in 1778, they entered into a League known as the Articles of Confederation, whereby they agreed to entrust the administration of their external relations to a common agent, known as the Congress of the United States, expressly declaring, in the first Article “that each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right which is not, by this Confederation, expressly delegated to the United States in Congress assembled…. Under this Confederation, the war of the Revolution was carried on, and on September 3, 1783, the contest ended, and a Treaty was signed by Great Britain in which she acknowledged the independence of the Colonies.
In 1787, Deputies were appointed by the States to revise the Articles of Confederation, and on 17th September, 1787, these Deputies recommended for the adoption of the States, the Articles of Union, known as the Constitution of the United States. The parties to whom this Constitution was submitted, were the several sovereign States; they were to agree or disagree, and when nine of them agreed the compact was to take effect among those concurring; and the General Government, as the common agent, was then invested with their authority. By this Constitution, certain duties were imposed upon the several States, and the exercise of certain of their powers was restrained, which necessarily implied their continued existence as sovereign States. But to remove all doubt, an amendment was added, which declared that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people. On the 23d May, 1788, South Carolina, by a Convention of her People, passed an Ordinance assenting to this Constitution, and afterwards altered her own Constitution, to conform herself to the obligations she had undertaken.”
5). It reinforces that the government is subject to the two great principles asserted in the Declaration of Independence (see earlier) – ”We hold that the Government thus established is subject to the two great principles asserted in the Declaration of Independence….”
6). It explains the legal nature of the Constitution – as a compact (contract; an agreement; a social contract) – and acknowledges the parties to such compact (the states). It also explains that as such, the Constitution is subject to the law of contracts:
“Thus was established, by compact between the States, a Government with definite objects and powers, limited to the express words of the grant. This limitation left the whole remaining mass of power subject to the clause reserving it to the States or to the people, and rendered unnecessary any specification of reserved rights….. We hold that the mode of its formation subjects it to the law of compact. We maintain that in every compact between two or more parties, the obligation is mutual; that the failure of one of the contracting parties to perform a material part of the agreement, entirely releases the obligation of the other; and that where no arbiter is provided, each party is remitted to his own judgment to determine the fact of failure, with all its consequences.
We assert that fourteen of the States have deliberately refused, for years past, to fulfill their constitutional obligations, and we refer to their own Statutes for the proof.”
7). Just as Jefferson submitted “facts to a candid world” of the history of repeated injuries and usurpations by King George of England, all having in direct object the establishment of an absolute Tyranny over the States, South Carolina listed proof that the Northern states deliberately failed to live up to their Constitutional obligations and therefore the compact is null and void:
(i) First, those states intentionally interfered with or ignored the Fugitive Slave Clause of the Constitution (Article IV, Sect. 2) - Any person held in service or slave in one state must be delivered back to that owner.
This clause “was so material to the compact, that without it that compact would not have been made. The greater number of the contracting parties held slaves, and they had previously evinced their estimate of the value of such a stipulation by making it a condition in the Ordinance for the government of the territory ceded by Virginia , which now composes the States north of the Ohio River….
(ii) The General Government, as the common agent, passed laws to carry into effect these stipulations of the States. For many years these laws were executed. But an increasing hostility on the part of the non-slaveholding States to the institution of slavery, has led to a disregard of their obligations, and the laws of the General Government have ceased to effect the objects of the Constitution…. Thus the constituted compact has been deliberately broken and disregarded by the non-slaveholding States, and the consequence follows that South Carolina is released from her obligation.
(iii) The ends for which the Constitution was framed are declared by itself to be ‘to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.’ These ends it endeavored to accomplish by a Federal Government, in which each State was recognized as an equal, and had separate control over its own institutions. The right of property in slaves was recognized by giving to free persons distinct political rights, by giving them the right to represent, and burdening them with direct taxes for three-fifths of their slaves; by authorizing the importation of slaves for twenty years; and by stipulating for the rendition of fugitives from labor.
We affirm that these ends for which this Government was instituted have been defeated, and the Government itself has been made destructive of them by the action of the non-slaveholding States. Those States have assume the right of deciding upon the propriety of our domestic institutions; and have denied the rights of property established in fifteen of the States and recognized by the Constitution…”
(iv) The Northern States have showed added hostility to the Southern states “by elevating to citizenship, persons who, by the supreme law of the land (Dred v. Scott), are incapable of becoming citizens; and their votes have been used to inaugurate a new policy, hostile to the South, and destructive of its beliefs and safety.”
(v) “On March 4, 1861, Abraham Lincoln will take possession of the Government. He has announced that the South shall be excluded from the common territory, that the judicial tribunals shall be made sectional, and that a war must be waged against slavery until it shall cease throughout the United States…. The guaranties of the Constitution will then no longer exist; the equal rights of the States will be lost. The slaveholding States will no longer have the power of self-government, or self-protection, and the Federal Government will have become their enemy.”
Other states, such as Georgia and Texas, offer many more reasons for the decision to secede.
Americans seceded twice in our relatively short history as a nation. We seceded from the British Empire over its taxation of the colonies without representation and a denial of other fundamental human liberties. Thomas Jefferson set those reasons out very clearly for “a candid world” to see in the Declaration of Independence. Some of those reasons were:
– In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.
The Southern states seceded in 1861 over what they felt were years of hostility to their sovereign interests. The high protective tariffs of 1828 and 1832 were a particular cause of contention.
In 1824, a high protective tariff was proposed by the US Congress. The purpose was to protect industry in the North which was being driven out of business by low-priced imported goods (by putting a tax on them). On May 19, 1828, it was passed by the US Congress. It came to be labeled the “Tariff of Abominations” by the Southern states because of the negative effects it had on the Southern economy. It was a high tariff on finished products (as opposed to raw materials). In 1828, which part of the country was producing “finished products”? The North. The North had the industry. The South was still an agrarian society. Its economy was supported by its exports – of cotton, sugar, and more. Southerners relied heavily on sales in the world market for their produce so that the protective tariffs did not offer them any service (only a detriment). The South was harmed directly by having to pay higher prices on finished goods. It used to buy them through imports but the tariffs made them too expensive. The choice then was to pay the high prices or buy from the North (which was also expensive for them). The South was also harmed indirectly because reducing the exportation of British goods to the US made it difficult for the British to pay for the cotton they imported from the South. Furthermore, because the United States enacted the high protective tariffs on foreign products, those countries retaliated on raw materials exported by the Southern states. Other countries weren’t buying their products. The demand for raw cotton abroad was greatly reduced. The South responded by lowering the price on their products, cotton in particular. The North took advantage of this and bought the cotton at the lower value for their manufacturing looms.
To make matters worse, the exports of the South, along with the tariffs and customs revenues, were the only important sources of tax revenue that supported the federal government. Some have estimated that 30% of the U.S. population (the South) was providing at least 70% of the income to the government. In other words, the South was disproportionately supporting the federal government and yet was being disserved by it with oppressive policies.
On the one hand, the government needed the revenue that the South brought in to fund the government, but on the other hand punished them, through various policies, to harm their interests and economies. So, when the South seceded, the major source of government revenue was lost. To some historians, the war against the South was a convenient vehicle to ensure the southern revenue base was retained to fund the treasury.
One complaint against King George could easily have been made by the Southern States against the federal government: “For cutting off our Trade with all parts of the world.”
As Lincoln’s election became evident, secessionists made clear their intent to leave the Union before he took office the following March. On December 20, 1860, South Carolina took the lead by adopting an ordinance of secession. By February 1, 1861, Florida, Mississippi, Alabama, Georgia, Louisiana, and Texas followed. Six of these states then adopted a constitution and declared themselves to be a sovereign nation, the Confederate States of America. Virginia, Arkansas, North Carolina, Tennessee, Missouri, and Kentucky soon followed. President Buchanan and President-elect Lincoln refused to recognize the Confederacy, declaring secession illegal. Lincoln, committed to the ideal of republicanism, saw secession as an act of anarchy and was committed to restoring the republic (the Union). In his first inaugural address, on March 4, 1861, Lincoln said: “Plainly, the central idea of secession is the essence of anarchy. A majority, held in restraint by constitutional checks and limitations and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. In rejecting the majority principle, anarchy or despotism in some form is all that is left.” In that same inaugural address, he also said: “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.”
In a message to Congress later that year, on July 4, he wrote: “The distinct issue, ‘Immediate dissolution or blood’…embraces more than the fate of these United States. It presents to the whole family of man the question of whether a constitutional republic or democracy — a government of the people, by the same people — can or cannot maintain its territorial integrity against its own domestic foes. It presents the question whether the discontented individuals — too few in numbers to control the administration, according to organic law, in any case — can always, upon the pretenses made in this case or on any other pretenses, or arbitrarily without any pretense, break up the government and thus practically put an end to free government upon the earth. It forces us to ask: ‘Is there, in all republics, this inherent and fatal weakness? Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?’”
In a letter to newspaper editor Horace Greeley dated August 22, 1862, Lincoln wrote: “My paramount object in this struggle is to save the Union, and is not either to save or destroy slavery. If I could save the Union without freeing any slave, I would do it; and if could save it by freeing all the slaves, I would do it; and if I could save it by freeing some and leaving the others alone, I would also do that.”
And in his annual message to Congress on Dec. 1, 1862, he said: “Fellow-citizens, we cannot escape history. We of this Congress and this administration, will be remembered in spite of ourselves. No personal significance, or insignificance, can spare one or another of us. The fiery trial through which we pass, will light us down, in honor or dishonor, to the latest generation. We say we are for the Union. The world will not forget that we say this. We know how to save the Union. The world knows we do know how to save it. We — even we here — hold the power, and bear the responsibility. In giving freedom to the slave, we assure freedom to the free – honorable alike in what we give, and what we preserve. We shall nobly save, or meanly lose, the last best hope of earth.”
Lincoln justified the war based on legal terms. (And certainly in moral terms as well). He believed the Constitution was a contract (and for one party to get out of a contract all the other parties had to agree); in fact, he believed the original states joined together with the intent of forming a perpetual union. He believed they memorialized that intent expressly in the Articles of Confederation. The Articles stated both in the Preamble and in the body that the union “thus created” is “perpetual.” Article XII stated: “The Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the united States, and be afterwards confirmed by the legislatures of every state.” (The term “perpetual” was actually used five times in the Articles). According to Lincoln, the Constitution, drafted to address the limitation of the Articles, merely created a more perfect ‘perpetual’ union.
So strongly did Lincoln believe this that he stated as such in his first inaugural address: “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.”
Apparently, this was not the position that Lincoln always held. On the floor of the 30th Congress on January 13, 1848, Lincoln delivered this message: “Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government and to form one that suits them better. Nor is this right confined to cases in which the people of an existing government may choose to exercise it. Any portion of such people that can, may make their own of such territory as they inhabit. More than this, a majority of any portion of such people may revolutionize, putting down a minority intermingling with or near them who oppose their movement.”
With respect to the sovereign powers “retained by the States,” (10th Amendment), Lincoln believed that the power or right to secede was not one of them. According to Lincoln, secession was not such a power since it is “a power to destroy the government itself.” To leave the Union would be to destroy the government.
Lincoln also cited two other constitutional sources for his belief that secession is illegal – The Supremacy Clause and the Guarantee Clause. The Supremacy Clause, in Article VI, states: “The Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Perhaps Lincoln saw secession as violating federal law, particularly the law against acts of treason.
Article IV, Section 4, clause 1 (The Guarantee Clause), states that “The United States shall guarantee to every State in this Union a Republican Form of Government.” This clause was cited by President Lincoln to justify a war to prevent secession.
So, those were Lincoln’s reasons to ignore the fact that the Southern states had seceded from the Union and formed a new sovereign nation – the Confederate States of America – and then to wage war to bring those states back into the Union. I had always been told that Lincoln was a brilliant man, a brilliant attorney, and a brilliant thinker. I think perhaps I will just think of Abraham Lincoln, our 16th President, as one of the finest speechwriters and orators in history. His Gettysburg Address, his letter to the grieving mother who lost five sons, his First Inaugural Address, and his Second Inaugural Address will always be among the most eloquent in our history. But I have serious problems in his legal and Constitutional justifications for the Civil War. A list of some challenges includes the following:
1). Lincoln believed the Constitution to be a contract that and that for one party (one State) to get out of that contract, all the other parties (States) had to agree. Lincoln represents contract law incorrectly. Parties are only concerned about mutual consent to dissolve the contract when they wish to be relieved of any remaining obligations. (That is, when they don’t wish to be liable for breach of contract damages). There is absolutely no principle or tenet in contract law which says that a party is required to remain committed to an agreement it no longer wishes to be. In contract law, there are such plausible defenses such as “frustration of contract” where the goal of the contract have been rendered no longer necessary by some act unrelated to the conduct of one of the contracting parties. Furthermore, a party is relieved of the contract when one of the contracting parties does something intentional to devalue the value of that contract. There is nothing requiring a state to remain loyal to a constitution that has become destructive of the ends for which it was created. (Who wouldn’t argue that the conduct of government today is out of control and bears like resemblance to the one that was created by compact in 1787-1790?
2). Lincoln asserted that secession amounts to anarchy or even despotism. Anarchy is defined as “without government or laws; lawlessness. The South quickly established a new Constitution and laws. There was no period of lawlessness or a lack of government, either for the United States of America or for the Confederate States of America. Anarchy is what we have now with the federal government refusing to enforce the laws it was entrusted by the American people to enforce. It is what we have in Arizona and in every sanctuary city for illegal immigrants. It is what is responsible for the killing and slaughter of citizens at the hands of illegal drug traffickers and illegal immigrants, who have no business being here. [This alone is ample grounds for the sovereign people or even the States to dissolve their compact with the federal government today].
3). Lincoln asserted that the Union as established under the Articles of Confederation was perpetual. He noted that the full title of the Articles read - “Articles of Confederation and Perpetual Union Between the States.” But the country was no longer organized under the Articles. It was organized under the Constitution, in order to “form a more perfect union” (and not a “perpetual union”). Was that merely an inconvenient detail? Did he assume that the US Constitution was an extension of the Articles and that if the states belonged to a perpetual union then they must no longer be sovereign? But the very organization under the Articles created a loose confederation of sovereign states and a weak central government. Most of the power remained with the state governments and in fact, the reason our Founders tended towards a new constitution was because the Articles was a weak document – it lacked enforcement ability. The government under the Articles could not raise tax revenue to pay the war debts or regulate commerce among the States. But the real failure on Lincoln’s part was in failing to appreciate the significance of the word “perpetual” in an 18th century compact. For an agreement, or compact, to be “perpetual,” it simply meant that it had no built-in sunset provision.
4). Lincoln asserted that the states could never leave the Union because the Union is ‘perpetual.’ He went even further to say that “Perpetuity is implied, if not expressed, in the fundamental law of all national governments.” (1861). I question whether Lincoln never read the Founding Fathers or read about our founding history. We know his position on ‘immortality’ is both incorrect and illogical because our Founders, in fact, wrote plenty on the topic of dissolving one’s bonds with government. Our founding colonists understood their fundamental right to sever bonds with a government that becomes tyrannical and abusive. In explaining the reasons for our formal separation from Great Britain in the Declaration of Independence, Thomas Jefferson first made a grand statement of individual liberties, one being “that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute a new Government.” We all understand that the Declaration explicitly supports the right of a people to alter or abolish government. John Locke, the English philosopher who wrote extensively on the design and role of government, and on whose works our Founders most relied, also acknowledged the right of a people to abolish a government that becomes illegitimate. Locke wrote: “The people “are absolved from obedience when illegal attempts are made upon their liberties or properties” because “self-defense is a part of the law of Nature.”
5). Furthermore, William Rawle, the author of the leading constitutional-law treatise of the early-nineteenth century, entitled A View of the Constitution, wrote: “To deny this right [of secession] would be inconsistent with the principle on which all our political systems are founded, which is, that the people have in all cases, a right to determine how they are governed.” [Note that William Rawle, a lawyer from Philadelphia, taught classes on the Constitution at West Point, including the topic of secession. He taught from this book. Ulysses S. Grant and Robert E. Lee were two of his students].
6). None of our Founders believed governments were intended to be perpetual. If Lincoln had been around during the American Revolution, and if his logic prevailed, then we would all still be Englishmen.
7). If governments were intended to be perpetual, then how could Lincoln have even justified the Constitution? Wouldn’t he have considered the “perpetual” Articles of Confederation to be the one true instrument and government? Furthermore, if governments were meant to be never-ending, as Lincoln reasoned, then it would follow that our current Union is illegitimate, and we must revert to the arrangement under the Articles of Confederation? (I think most states and even the People might like that idea !!)
8). If compacts are perpetual, how were the States able to withdraw from the Articles of Confederation? In adopting the Articles of Confederation, the States had withdrew from the Articles of Confederation. Surely Lincoln noticed that all of the states, over a period of three years, did so despite clearly stated wording that their Union was perpetual. (North Carolina and Rhode Island were the last to ratify, in Nov. 1789 and May 1790, respectively). After all, the Articles clearly stated that “the Union shall be perpetual.” Why didn’t Lincoln suggest the Articles to be, in fact, the legitimate compact? How was Lincoln able to rationalize the fact that states withdrew from the Articles (without an agreement or firm assurances from all states that they would re-form under the US Constitution)? Didn’t they, in fact, destroy the government in doing so? The Founders required unanimous consent by the thirteen States before making any changes to the Articles of Confederation. Yet in spite of this requirement, and just seven years after its ratification, nine of the thirteen States tacitly this ‘perpetual’ Union when they ratified the Constitution.
9). Lincoln cites the fact that the Articles of Confederation uses the word “perpetual” several times in describing the Union. Article II of the Articles apparently contrasted the phrase “perpetual union.” It stated: “Each state retains its sovereignty, freedom and independence and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.” [Article II of the Articles was the equivalent of and precursor to the 10th Amendment of the Constitution].
10). Just because parties aspire to a ‘perpetual’ union doesn’t mean that it will in fact happen. Men and women take a vow of marriage with the expectation that their union will be perpetual, and we know how that plays out in many cases.
11). While many elements of the Articles made it into the final Constitution, the word “perpetual” was noticeably not included. Lincoln rationalized that the phrase “a more perfect union” referred to the “perpetual union” created by the Articles. However, there was absolutely no evidence to support his claim. The Founders never offered any definition for their words “to form a more perfect Union.” The fact is that Gouverneur Morris wrote the Preamble on his own, almost as an afterthought. It was not debated in the Convention. He wanted a statement setting forth the reasons why the Constitution was drafted for the People. The better conclusion is that the word was intentionally disregarded and that it was given no thought whatsoever. Obviously, the Founders felt “a more perfect” Union was the better expression of their intentions and expectations in creating the Constitution. Perhaps the Founders felt it was more likely than not that a government would eventually outlive its usefulness and would be replaced by one better suited to the needs of the people.
12). ...................... (to be continued)