SECESSION: DOES A STATE HAVE THE RIGHT TO SECEDE FROM THE UNION?

Last month 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.

So, seeing that people were generally interested in that question, I thought I would use that topic as the one I’d review here. Besides, the topic of secession is one that necessarily talks about States’ rights and State sovereignty and those issues are very important right now, especially seeing that our government has become a runaway train.

We declared our separation from Great Britain in 1776 with the Declaration of Independence, which was an act of secession. 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.

But nowadays, when we think of secession, we think back to the Confederacy and the Civil War. We think of the decision to sever relations with fellow states. 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 slavery, the bigger issue of States’ rights wouldn’t 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.

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. 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 simply means they don’t value the rule of law as laid down by our Founders. FDR had this mentality. Lincoln had this mentality. Even Teddy Roosevelt had this mentality. And most of all, Barack Obama embraces this mentality. Those who wrote and adopted legislation to “punish” the states had this mentality. Those who now seek to target white Americans – “Rightwing Extremists” (under the Patriot Act and “See Something, Say Something” Act) – as those who pose the greatest danger to the country, rather than radical Islamists have this mentality. Those who praise Bill Ayers and the Weather Underground for killing innocent public servants and family men but condemn Timothy McVeigh as the worst domestic
terrorist of all time have this mentality. Those who blame the rich for all the woes of the country and demand that they pay the bulk of taxes as their “patriotic duty” have this
mentality. And even those, like NYC Mayor Bloomberg, who seek to deny clergy at the 9/11 ceremony because he doesn’t believe a religious presence should be involved (separation of church and state?) have this mentality. Each instance perverts a fundamental principle of law upon which our country was founded. As Sarah Palin once asked: “How’s that working out for you?”

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.

In this review, I’ll talk about the various theories that come into play when we talk about secession, what our Founders thought about it, what Abraham Lincoln himself had to say, and finally, what the Supreme Court had to say. I think that will give us a lot to think about. Then we can move on to talk about current state sovereignty issues, such as healthcare, immigration, the Repeal Amendment, and current movements to repeal the 17th Amendment. Although I hope readers will appreciate the critical review of Lincoln’s decision to invade the Southern Confederacy which I’ve attempted, perhaps moreso, I hope the review of secession in general will help them better focus on the issues involved in these bitterly-debated current topics, and even in many others (such as Agenda-21 and the UN Small Arms Treaty). I hope readers will have a better appreciation for these issues, including those of:

  1. States’ Rights and State Sovereignty; and 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, AND
  3. The right of people to expect their states to stick up for their liberties and their property rights.

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.”

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.

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.

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 Adams 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 believer in states’ rights and nullification (states could declare null and void federal laws which they held to be unconstitutional). He 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. He was a proponent of slavery and pushed for secession up until his death in 1850. 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 believed the doctrine of nullification could lead to secession and in fact that very scenario almost played out in 1832.

In 1932, 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.

Secession –

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:

  • He has refused his Assent to Laws, the most wholesome and necessary for the public good.
  • He has refused to pass other Laws for the accommodation of large districts ofpeople, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
  • He has called together legislative bodies at places unusual, uncomfortable, anddistant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
  • He has dissolved Representative Houses repeatedly, for opposing with manlyfirmness his invasions on the rights of the people.
  • He has obstructed the Administration of Justice, by refusing his Assent to Lawsfor establishing Judiciary powers.
  • He has made Judges dependent on his Will alone, for the tenure of their offices,and the amount and payment of their salaries.
  • He has erected a multitude of New Offices, and sent hither swarms of Officers toharass our people, and eat out their substance.
  • He has kept among us, in times of peace, Standing Armies without the Consent ofour legislatures.
  • He has affected to render the Military independent of and superior to the Civilpower.
  • He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
  • For Quartering large bodies of armed troops among us:
  • For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
  • For cutting off our Trade with all parts of the world:
  • For imposing Taxes on us without our Consent:
  • For depriving us in many cases, of the benefits of Trial by Jury:
  • For taking away our Charters, abolishing our most valuable Laws, and alteringfundamentally the Forms of our Governments:
  • For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
  • He has abdicated Government here, by declaring us out of his Protection and waging War against us.
  • He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
  • He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose knownrule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

– 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. 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 in augural 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 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.”

4). Furthermore, William Rawle, the author of the leading constitutional-law treatise of the early-nineteenth century 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.”

5). 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.

6). 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 !!)

7). 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.

8). 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].

9). 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.

10). 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. It can be argued that the Founders felt “a more perfect” Union was a 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.

11). The recurrent fatal flaw in Lincoln’s logic is that the withdrawal of a State would destroy the Union. It was upon this premise that he was so determined to preserve the “perpetual union.” It was for this reason that he was not willing to read the power or right of secession in the 10th Amendment (“it is a power to destroy the government itself”) He made this assertion often. .. that it would destroy the government. Lincoln repeatedly made this assertion that the withdrawal of a State would destroy the Union. This argument was flawed for two reasons: (i) there is nothing in the Constitution that requires the number of states to remain constant; and (ii) secession of even 13 states did not dissolve the Union. (How useless or ineffective could it have been rendered if it won the war?)

12). 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 the States dissolve the compact. The only way that would happen if there was uniform frustration with that 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 join the Union and other States could secede from that Union. A perpetual Union would not demand that the same number of states remain the same. If that were the case, then wouldn’t we be limited to only thirteen states today?

13). Lincoln believed that the power or right to secede was not one of the rights left to the States in the 10th Amendment. 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. Was the government destroyed even after 13 states seceded from the Union? Lincoln’s reasoning was therefore proved flawed. If the government was destroyed, as Lincoln contended it would be with the secession of even one state, then what institution – what sovereign – ordered a million troops to fight the South? Which one issued the Emancipation Proclamation? Lincoln made his frequently repeated assertion that the withdrawal of a State would destroy the Union. This was his fatally-flawed argument because there is States could leave and the Union would still remain viable.

14). Lincoln claimed to have power to preserve the Union (wage war) under the Supremacy Clause of the Constitution. However, the supremacy of the Constitution and laws made in pursuance thereof is only a valid argument if the Constitution actually requires a state to remain part of the Union or if the state is in the Union. If the Constitution doesn’t (our Constitution is in fact silent on the subject), or if a state has separated from the Union, then the seceding state has no allegiance to the US Constitution.

15). Lincoln also claimed legal authority to invade the South based on the Guarantee Clause. As with the Supremacy Clause, the Guarantee Clause only applied to a state that is in the Union.

16). Lincoln asserted that the power to secede was not a power the Founders intended for the States (for, according to Lincoln, that would be the power to destroy the government). If the Founders didn’t intend the right of the People or States to abolish their bonds with government, then why was the Second Amendment included in our Bill of Rights? The Second Amendment was designed to guarantee the right of the people to have “their private arms” to prevent tyranny and to overpower an abusive standing army or select militia.

17). Lincoln apparently liked to cherry-pick which Constitutional provisions he liked and which he just intended to ignore (like the fundamental rights to writs of habeas corpus !!). He cited Article IV, Section 4, clause 1 to support the war against the South (Guarantee Clause – “The United States shall guarantee to every State in this Union a Republican Form of Government.”), yet in the same breath, he was willing to violate the very next clause, which states: “The United States shall protect each of them (the States) against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence.” (Article IV, Section 4, clause 2).

18). Actually, I’m having a very hard time understanding at all how Lincoln could justify invasion with the Guarantee Clause. By invading the South, the federal government, acting under the Supreme law of the land, breached its obligation to “guarantee to each state a republican form of government” by destroying those very governments. If Lincoln believed that the states were merely in rebellion and engaging in anarchy rather than having seceded (because according to him, states don’t have that power or right), then as President, didn’t he have a duty to protect them from any violence, not to engage them in violence?

19). It is my opinion that Lincoln’s very act of war against the Confederate states is an acknowledgment under Article IV, Section 4 that the states had legally left the Union. The decision to invade rather than “protect from invasion” would seem to me an act of war. War is waged on an aggressor (which the South clearly wasn’t) or on another sovereign under a manifest destiny type mentality (or moral crusade).

20). Slavery was doomed to fail. It was a matter of time. Just like communism in Soviet Russia. Compare the actions of two Presidents, Lincoln and Ronald Reagan. Ronald Reagan didn’t just believe that the Soviet Union and communism could fail, he believed it was inevitably destined to fail. Rather than wage war on a debilitated and economically fragile Soviet Union and endure human casualties, he helped accelerate that process through peaceful means and sound economic policies. Couldn’t Lincoln have pursued the same path and spared the lives of 600,000 Americans and the ravaging of the South? Why didn’t the government purchase the freedom of the slaves and then pursue policies to help modernize southern agriculture (to end the dependence on human servitude)?

21). We Americans generally believe that the Gettysburg Address is the greatest and most stirring speech given by a US President. But did Lincoln get his facts right? Those who understand the causes of the Civil War and have read the Declarations of Secession know that it was the South, not the North, that was fighting for a government of the people, by the people and for the people. As American journalist, H. L. Menchen (1880-1956), commented on Lincoln’s Gettysburg Address: “The Gettysburg speech was at once the shortest and the most famous oration in American history…the highest emotion reduced to a few poetical phrases. Lincoln himself never even remotely approached it. It is genuinely stupendous. But let us not forget that it is poetry, not logic; beauty, not sense. Think of the argument in it. Put it into the cold words of everyday. The doctrine is simply this: that the Union soldiers who died at Gettysburg sacrificed their lives to the cause of self-determination — that government of the people, by the people, for the people, should not perish from the earth. It is difficult to imagine anything more untrue. The Union soldiers in the battle actually fought against self-determination; it was the Confederates who fought for the right of their people to govern themselves.”

22). Lastly, I criticize once again Lincoln’s ability to cherry-pick the fundamental principles he wished the government to recognize. On the one hand, he read the Declaration’s promise that “All Men are Created Equal” as a mandate to end slavery, yet on the other hand, he chose to ignore the equally important principle 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 new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

Looking at things from a state sovereignty point of view, saying that Lincoln saved the Union by winning the Civil War is like saying a man saved his marriage by beating his wife into submission.

The Declaration of Independence wasn’t intended as a one-time “Get Out of Jail Free” card !!

QUESTION: Didn’t the Civil War establish the rule that secession is not an option for any State?

–> Absolutely not. It only shows that violent coercion can be used to rob men of their very lives, liberty, and property. It shows that a President, unchecked, can overstep his constitutional bounds by waging war against a non-threatening, peaceful nation. The Confederate States withdrew from the Union lawfully, civilly, and peacefully, after enduring several decades of excessive and inequitable federal tariffs (taxes) which were heavily prejudiced against Southern commerce and decades of hostility over slavery. Refusing to recognize the Confederate secession, Lincoln called it a “rebellion,” “anarchy,” and a “threat” to “the government” (without ever explaining exactly how “the government” was “threatened” by a lawful, civil, and peaceful secession) and acted outside the lawfully defined scope of either the office of president or the U.S. government in general, to coerce the South back into the Union.

QUESTION: What reasons did the Southern States give for secession?

–> South Carolina: It seceded basically over two abuses by the federal government and the hostile Northern states, acting in violation of the Constitution and improperly through the federal government. (Violations of Article IV, Section 2 of the US Constitution regarding the Fugitive Slave clause and the Fugitive of Justice clause). South Carolina’s Declaration of Secession is a wonderful restatement of the reasons the states sought to “form a more perfect Union” and establish the US Constitution. “We affirm that those ends for which the government was instituted have been defeated and the government itself has been made destructive of them by the action of the non-slaveholdng States. Those states have assumed the right of deciding upon the rights and property of our state and upon the propriety of our domestic institutions… On the 4th of March, the Republican Party (ie, Lincoln) will take possession of the government. The guarantees 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…. We therefore solemnly declare that the Union between this State and the other States of North Carolina is dissolved and South Carolina has resumed her position among the nations of the world as a separate and independent State.”

[Remember that the Treaty of Paris, signed by Great Britain on Sept. 3, 1783, officially ending the Revolutionary War and acknowledging our independence, stated in Article I

– ” His Britannic Majesty acknowledges the said United States, viz: New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be FREE, SOVEREIGN AND INDEPENDENT STATES; that he treats with them as such; and for himself, his heirs and successors, relinquishes all claims to the government, propriety and territorial rights of the same and every part thereof.”]

–> Mississippi: It essentially seceded over the issue of slavery(property rights) and the hostility by the Northern States towards the Southern States and their interests over that issue. The Mississippi state convention listed out the several reasons for secession (as Jefferson had done in the Declaration of Independence for our separation from England).

“Utter subjugation awaits us in the Union, if we should consent longer to remain in it. It is not a matter of choice, but of necessity. We must either submit to degradation, and to the loss of property worth four billions of money, or we must secede from the Union framed by our fathers, to secure this as well as every other species of property. For far less cause than this, our fathers separated from the Crown of England.”

–> Florida: No reasons given. “The State of Florida hereby withdraws herself from the confederacy of States existing under the name of the United States of America and from the existing Government of the said States; and that all political connection between her and the government of said States ought to be totally annulled, and the State of Florida is hereby declared a sovereign and independent nation.”

–> Alabama: It also essentially seceded over the issue of slavery(property rights) and the hostility by the Northern States towards the Southern States and their interests over that issue. “This is an ordinance to dissolve the union between the State of Alabama and the other States united under the compact titled ‘The Constitution of the United States of America’……. The election of Abraham Lincoln and Hannibal Hamlin to the offices of president and vice-president of the United States of America, by a sectional party, avowedly hostile to the domestic institutions and to the peace and security of the people of the State of Alabama, preceded by many and dangerous infractions of the Constitution of the United States by many of the States and people of the Northern section, is a political wrong so insulting and menacing as to justify the people of the State of Alabama to withdraw from the Union.”

–> Georgia: It also essentially seceded over the issue of slavery(property rights) and the hostility by the Northern States towards the Southern States and their interests over that issue. The Mississippi state convention listed out the several reasons for secession (as Jefferson had done in the Declaration of Independence for our separation from England) as well as a detailed history of the events pitting the pro-slavery South and the anti-slavery North leading to the election of Abraham Lincoln. For the last ten years we have had numerous and serious causes of complaint against our non-slaveholding confederate States with reference to the subject of African slavery. They have endeavored to weaken our security, to disturb our domestic peace and tranquility, and persistently refused to comply with their express constitutional obligations to us in reference to that property (by not returning slaves to their Southern owners), and by the use of their power in the Federal Government have striven to deprive us of an equal enjoyment of the common Territories of the Republic (frustrating the spread of slavery into the western territories). This hostile policy of our confederates has been pursued with every circumstance of aggravation which could arouse the passions and excite the hatred of our people, and has placed the two sections of the Union for many years past in the condition of virtual civil war.”

–> Louisiana: No reasons given. ” We declare that the State of Louisiana hereby resumes all rights and powers heretofore delegated to the Government of the United States of America; that her citizens are absolved from all allegiance to said Government; and that she is in full possession and exercise of all those rights of sovereignty which appertain to a free and independent State.”

–> Texas: Texas’ Declaration of Secession is in a special class by itself – with its language. Like South Carolina and Georgia, it lists several reasons for secession and goes into great detail. “By the disloyalty of the Northern States and their citizens and the imbecility of the Federal Government, infamous combinations of incendiaries and outlaws have been permitted in those States and the common territory of Kansas to trample upon the federal laws, to war upon the lives and property of Southern citizens in that territory, and finally, by violence and mob law, to usurp the possession of the same as exclusively the property of the Northern States…. The Federal Government has for years almost entirely failed to protect the lives and property of the people of Texas against the Indian savages on our border, and more recently against the murderous forays of banditti from the neighboring territory of Mexico; and when our State government has expended large amounts for such purpose, the Federal Government has refuse reimbursement therefore, thus rendering our condition more insecure and harassing than it was during the existence of the Republic of Texas…

The Northern States have deliberately, directly or indirectly violated the 3rd clause of the 2nd section of the 4th article [the fugitive slave clause] of the federal constitution, and laws passed in pursuance thereof; thereby annulling a material provision of the compact, designed by its framers to perpetuate the amity between the members of the confederacy and to secure the rights of the slave-holding States in their domestic institutions – a provision founded in justice and wisdom, and without the enforcement of which the compact fails to accomplish the object of its creation. Some of those States have imposed high fines and degrading penalties upon any of their citizens or officers who may carry out in good faith that provision of the compact, or the federal laws enacted in accordance therewith.

In all the non-slave-holding States, in violation of that good faith and comity which should exist between entirely distinct nations, the people have formed themselves into a great sectional party, now strong enough in numbers to control the affairs of each of those States, based upon an unnatural feeling of hostility to these Southern States and their beneficent and patriarchal system of African slavery, proclaiming the debasing doctrine of equality of all men, irrespective of race or color – a doctrine at war with nature, in opposition to the experience of mankind, and in violation of the plainest revelations of Divine Law. They demand the abolition of negro slavery throughout the confederacy, the recognition of political equality between the white and negro races, and avow their determination to press on their crusade against us, so long as a negro slave remains in these States.

For years past this abolition organization has been actively sowing the seeds of discord through the Union, and has rendered the federal congress the arena for spreading firebrands and hatred between the slave-holding and non-slaveholding States. By consolidating their strength, they have placed the slave-holding States in a hopeless minority in the federal congress, and rendered representation of no avail in protecting Southern rights against their exactions and encroachments….

The People of Texas dissolve all political connection with the government of the United States of America and the people thereof.”

–> Virginia: No reasons were given. “The people of Virginia in their ratification of the Constitution of the United States of America, adopted by them in convention on June 25, 1787, having declared that the powers granted under said Constitution were derived from the people of the United States and might be dissolved whensoever the same should be perverted to their injury and oppression. The Federal Government has perverted said powers not only to the injury of the people of Virginia, but to the oppression of the Southern slave-holding States. Therefore, We the People of Virginia, do declare that the union between the State of Virginia and the other States under the Constitution is hereby dissolved, and that the State of Virginia is in the full possession and exercise of all the rights of sovereignty which belong and appertain to a free and independent State. And they further declare that said Constitution of the United States of America is no longer binding on any of the citizens of this State.”

–> Arkansas: No reasons given. “We declare that the State of Arkansas hereby resumes to herself all rights and powers heretofore delegated to the Government of the United States of America; that her citizens are absolved from all allegiance to said Government of the Unites States, and that she is in full possession and exercise of all the rights and sovereignty which appertain to a free and independent State.” (same wording as Louisiana).

–> North Carolina: No reasons given. [It is believed that North Carolina really didn’t want to secede but it felt that it would be positioned as a Union state stuck between two Confederate states and would therefore suffer terrible casualties of war]. ” We declare that the union now subsisting between the State of North Carolina and the other States, under the title of the United States of America, is hereby dissolved, and that the State of North Carolina is in full possession and exercise of all those rights of sovereignty which belong and appertain to a free and independent State.”

–> Tennessee: No reasons given. ” We, the people of the State of Tennessee, waiving any expression of opinion as to the abstract doctrine of secession, but asserting the right, as a free and independent people, to alter, reform, or abolish our form of government in such manner as we think proper, declare that all the laws and ordinances by which the State of Tennessee became a member of the Federal Union of the United States of America are hereby abrogated and annulled, and that all the rights, functions, and powers which by any of said laws and ordinances were conveyed to the government of the United States, and to absolve ourselves from all the obligations, restraints, and duties incurred thereto; and do hereby henceforth become a free, sovereign, and independent State.”

–> Missouri: It seceded over the hostile invasion of the South and the government’s hostility to the Southern states. “ Whereas the Government of the United States, in the possession and under the control of a sectional party, has wantonly violated the compact originally made between said Government and the State of Missouri, by invading with hostile armies the soil of the State, attacking and making prisoners the militia while legally assembled under the State laws, forcibly occupying the State capitol, and attempting through the instrumentality of domestic traitors to usurp the State government, seizing and destroying private property, and murdering with fiendish malignity peaceable citizens, men, women, and children, together with other acts of atrocity, indicating a deep-settled hostility toward the people of Missouri and their institutions; and whereas the present Administration has utterly ignored the Constitution, subverted the government

as constructed and intended by its makers, and established a despotic and arbitrary power instead thereof: Therefore, all political ties of every character new existing between the Government of the United States of America and the people and government of the State of Missouri are hereby dissolved, and the State of Missouri resumes its sovereignty and again takes its place as a free and independent republic amongst the nations of the Earth.”

–> Kentucky: It seceded over the hostile invasion of the South and the brutal treatment of Kentucky citizens and property because of its sympathetic position to the fifteen independent Southern states. “We hereby forever sever our connection with the Government of the United States and declare Kentucky to be a free and independent State, clothed with all power to fix her own destiny and to secure her own rights and liberties.”

QUESTION: Didn’t the Supreme Court settle the question of secession in Texas v. White, 74 U.S. 700 (1869)?

–> The Court held that while a state doesn’t have the right of unilateral secession, there is an exception for secession “through revolution, or through consent of the States.”

The decision is actually unsettling or curious because at it turned out, the actions of President Ulysses S. Grant were in contradiction to the Court’s holding.

This case deals with title to $10 million worth of US bonds issued by the government to the state of Texas in 1851 as compensation for a border dispute, to be redeemable in 1864. Well, in 1861, Texas seceded from the Union and took up arms in defense of the Confederacy. Five years later, in 1866, the reconstruction government tried to reclaim the bonds. (It filed suit with the Supreme Court under Article III original jurisdiction, as a State filing suit against a citizen of another state).

Facts: In 1851, Congress authorized the transfer of $10 million worth of United States bonds to the state of Texas as compensation for her claims in connection with the settlement of her boundary. The bonds were payable to the state or bearer and were to be redeemable in 1864. On February 2, 1861, a Texas state Convention drafted and adopted Articles of Secession and on Feb. 23, that document was ratified by a majority of the voters of the State. The convention, which had adjourned before the vote was taken, reassembled on March 2 and instructed the delegates already sent to the Congress of the seceding States to apply for admission into the Confederation and to assent to its provisional constitution.

Texas also proceeded to make the necessary changes in its State constitution to reflect its new status. The words “United States” were stricken out wherever they occurred and the words “Confederate States” substituted, and all members of the legislature, as well as other officers of the State, were required by the new constitution to take an oath of fidelity to this new Confederate Constitution and the laws of the new confederacy. Officers of the State of Texas were required to appear and formally take an oath of allegiance to the Confederate States. [The governor and secretary of state, refusing to comply, were summarily ejected from office]. Members of the legislature took the oath without incident and then proceeded on April 8 to provide by law for their choice of electors for President and Vice President of the Confederate States. The representatives of the State in the Congress of the United States were withdrawn, and, as soon as the seceded States became organized under a constitution, Texas sent senators and representatives to the Confederate Congress.

“In all respects, by acts of the legislature, and by votes of the citizens, the relations of Texas to the Union were broken up and new relations to a new government were established for them.”

In 1862, during the Civil War, when Texas joined the rebellion against the United States, a Texas legislature authorized the use of the bonds to purchase war supplies. Four years later, in 1866, the reconstruction government tried to reclaim the bonds.

As the Court then asked: “Did Texas, in consequence of these acts, cease to be a State? Or, if not, did the State cease to be a member of the Union?”

Questions Presented: Could Texas constitutionally reclaim the bonds? Could it avail itself of Original Jurisdiction before the Supreme Court?

The decision would turn on whether Texas, as a consequence of its acts of adopting Articles of Secession and fighting against the United States, ceased to be a State, for if the State of Texas was not, at the time of filing its suit or even when it came before the Supreme Court, one of the United States, it would have no jurisdiction over the suit and would be dismissed.

Decision: In a 5-to-3 decision written by Chief Justice Salmon Chase, the Court held that Texas did indeed have the right to bring suit and that individuals such as White had no claim to the bonds in question. The Court held that individual states could not unilaterally secede from the Union and that the acts of the insurgent Texas legislature, even if ratified by a majority of Texans, were “absolutely null.” Even during the period of rebellion, however, the Court found that Texas continued to be a state. According to Chase, entry of Texas into the United States was its entry into “an indissoluble relation” and only through revolution or mutual consent of the state and the other states could that state legally leave the Union.

[Concise: While a state doesn’t have the right of unilateral secession, there is an exception for secession “through revolution, or through consent of the States.”]

Chief Justice Chase wrote:

“The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to “be perpetual.” And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained “to form a more perfect Union.” It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?

But the perpetuity and indissolubility of the Union by no means implies the loss of distinct and individual existence, or of the right of self-government, by the States. Under the Articles of Confederation, each State retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still all powers not delegated to the United States nor prohibited to the States, are reserved to the States respectively, or to the people. And we have already had occasion to remark at this term that the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence, and that, “without the States in union, there could be no such political body as the United States.” Not only, therefore, can there be no loss of separate and independent autonomy to the States through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States.

Therefore, when Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.

Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null.

They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation.

Our conclusion therefore is that Texas continued to be a State, and a State of the Union, notwithstanding the transactions to which we have referred. And this conclusion, in our judgment, is not in conflict with any act or declaration of any department of the National government, but entirely in accordance with the whole series of such acts and declarations since the first outbreak of the rebellion.

….. While Texas was controlled by a government hostile to the United States, and in affiliation with a hostile confederation, waging war upon the United States, senators chosen by her legislature, or representatives elected by her citizens, were entitled to seats

in Congress, or that any suit instituted in her name could be entertained in this court. All admit that, during this condition of civil war, the rights of the State as a member, and of her people as citizens of the Union, were suspended. The government and the citizens of the State, refusing to recognize their constitutional obligations, assumed the character of enemies, and incurred the consequences of rebellion.

There being then no government in Texas in constitutional relations with the Union, it became the duty of the United States to provide for the restoration of such a government. But the restoration of the government which existed before the rebellion, without a new

election of officers, was obviously impossible, and before any such election could be properly held, it was necessary that the old constitution should receive such amendments as would conform its provisions to the new conditions created by emancipation, and afford adequate security to the people of the State…… The President of the United States issued a proclamation appointing a provisional governor for the State and providing for the assembling of a convention with a view to the reestablishment of a republican government under an amended constitution, and to the restoration of the State to her proper

constitutional relations. A convention was accordingly assembled, the constitution amended, elections held, and a State government, acknowledging its obligations to the Union, established.

The power exercised by the President was derived from his constitutional functions, as commander-in-chief, and, so long as the war continued, it cannot be denied that he might institute temporary government within insurgent districts occupied by the National

forces, or take measures in any State for the restoration of State government faithful to the Union, employing, however, in such efforts, only such means and agents as were authorized by constitutional laws.

But the power to carry into effect the Guaranty Clause is primarily a legislative power, and resides in Congress. ‘Under the fourth article of the Constitution, it rests with Congress to decide what government is the established one in a State. For, as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not.’

The action of the President must therefore be considered as provisional… The governments which had been established and had been in actual operation under executive direction were recognized by Congress as provisional, as existing, and as capable of continuance….. The necessary conclusion is that the suit was instituted and is prosecuted by competent authority.

…. Title of the State was not divested by the act of the insurgent government in entering into this contract.”

Texas v. White, 74 U.S. 700 (1869).

[Note that Salmon Chase was appointed by Abraham Lincoln as a cabinet member and was a leading Union figure during the war against the South].

It is noteworthy that President Lincoln considered Texas, but no other state, to have “been a State out of the Union.” [He argued that that the original 13 states “passed into the Union” even before 1776; united to declare their independence in 1776; declared a “perpetual” union in the Articles of Confederation two years later; and finally created “a more perfect Union” by ratifying the Constitution in 1788].

It is also noteworthy that two years after that decision, President Grant signed an act entitling Texas to U.S. Congressional representation, readmitting Texas to the Union.

Either the Supreme Court was wrong in claiming Texas never actually left the Union or the Executive (President Grant) was wrong in “readmitting” a state that, according to the Supreme Court, had never left.

Both can’t be logically or legally true.

To be clear: Within a two year period, two branches of the same government took action with regard to Texas on the basis of two mutually exclusive positions — one, a judicially contrived “interpretation” of the US Constitution, argued essentially from silence, and the other a practical attempt to remedy the historical fact that Texas had indeed left the Union, the very evidence for which was that Texas had recently met the demands imposed by the same federal government as prerequisite conditions for readmission. If the Supreme Court was right, then the very notion of prerequisites for readmission would have been moot — a state cannot logically be readmitted if it never left in the first place.

This gross logical and legal inconsistency remains unanswered and unresolved to this day.

QUESTION: Does the Supreme Court have the authority to make a decision about whether a state may secede or not, especially in deciding that it doesn’t?

–> In Marbury v. Madison, Chief Justice Marshall articulated the concept of judicial review, writing that federal courts must hold the Executive and Legislative branches to their Constitutional limits. He also wrote that Justices and judges are bound by their oaths. They are bound by the “particular phraseology” and meaning of the Constitution in their analyses.

–> Marbury would support the notion of a strict reading of the Constitution (which is

silent on the issue of secession). As James Madison explained: “Every word of the Constitution decides a question between power and liberty.”

QUESTION: Is it true that both California and Texas have such a right in the agreements they signed to join the Union?

–> I have read that this is not true. There are no direct provisions. However, in both the original (1836) and the current (1876) Texas Constitutions, Article I states that “All political power is inherent in the people … they have at all times the inalienable right to alter their government in such manner as they might think proper.”

QUESTION: What are states currently doing about States’ rights?

–> Direct Challenges to Immigration and Healthcare

–> Nullification Schemes (including the Repeal Amendment to the US Constitution)

–> Repeal of 17th Amendment (Rick Perry is talking about this; also, Tea Party is expected to force this issue)

–> Embracing the Tea Party movement (limited government; States’ rights)

(A). On March 24, 2010, Virginia signed into law the Healthcare Freedom Act.

1). It protects its citizens from being forced to purchase health insurance or participate in any health care system against their will.

2). It is a “nullification” bill.

3). Virginia was the first state to pass such a law (It is believed that 38 states have or still plan to do so; Governor Perdue vetoed the NC Healthcare Freedom Bill)

4). On March 23, Virginia’s Attorney General Ken Cuccinelli filed a lawsuit against the government challenging the legality of the health care legislation (Obamacare). The lawsuit claims Congress exceeds its powers under the Commerce Clause.

5). The VA Healthcare Freedom Act provided “standing” to challenge the Individual Mandate. Cuccinelli argued that the state of Virginia, as a valid exercise of state power under the 10th Amendment, has the right to regulate healthcare for its people and the federal government has no such constitutional power to compel citizens to do so under the Commerce Clause.

6). Cuccinelli is an activist state Attorney General who filed the lawsuit to challenge the power of the Congress under the Commerce Clause.

7). He said: “I don’t think in my lifetime we’ve seen one statute that so erodes liberty than this health care bill. Certainly, we view our lawsuit as being not merely about health care. That’s actually secondary to the real important aspect of the case, and that is to protect the Constitution, as we essentially define the outer limits of federal power. If we lose, it’s very much the end of federalism as we’ve known it for over 220 years.”

– Cuccinelli vows to fight to restrain the federal government, which he calls “the

schoolyard bully across the Potomac.”

– He doesn’t hide his disdain for the Obama administration. He says: “They have no respect for the law, for the Constitution, no respect for the states. And no respect for the courts.”

– He believes States’ Attorney Generals have a huge responsibility. “They are the last line of defense when there are no principle protectors of the Constitution.”

– He believes they must step up on behalf of their states and states in general to restrain the federal government.

And all States should take sides with Attorney General Cuccinelli or with Florida and the 26 other states challenging the federal healthcare bill. This is not only a matter deeply entrenched in a States’ sovereign powers but it is such an offensive intrusion in an individual’s life and affairs that that it is exactly the type of violation of individual liberty that a State was expected to protect against. The balance of power established explicitly by the 10th Amendment was to keep power over the individual closest to them… that is, with the states and local governments.

To appreciate how scary the government’s position is with respect to its right to mandate compliance with its healthcare scheme, just look at the decision it is basing its defense of the healthcare bill on – Wickard v. Filburn.

In 1942, in a case known as Wickard v. Filburn, the government won a great battle in having control over private property. [The 16th Amendment income tax decision -Brushaber v. Union Pacific Railroad (1916) – was another huge victory, but that’s a topic for another day]. Wickard v. Filburn was one of the scariest decisions handed down by the Supreme Court, the justices read a greatly enlarged grant of Congressional power into the Commerce Clause, in contradiction to our Founding Fathers. The case addressed the constitutionality of the second Agricultural Adjustment Act of 1938, which was part of FDR’s New Deal. The Act empowered the federal government to set quotas and prices for agricultural products moving in interstate commerce, presumably to help farmers suffering from both the Depression and the dust bowl weather cycle of the mid-thirties, as well as to insulate consumers from price-gouging. Filburn was one such a farmer. He essentially was a dairy farmer who maintained a small dairy herd and some chickens on his Ohio farm. He sold milk, poultry, and eggs on the open market. He also planted feed for his livestock, including a small patch of wheat to feed the chickens, and to grind into flour for his own use. None of the wheat left his farm. Unfortunately he made the mistake of planting 12 acres more than the federal quota allowed in 1941. From this additional 12 acres, he collected a harvest of 239 bushels, which he consumed all on-farm. He was penalized 49¢ per bushel by the government, which represented a “tax” rate of about 57% of that year’s average market price. Enraged, and believing that the government is only entitled to regulate items that go across interstate lines, Filburn sued.

He challenged the Act on the basis that the Commerce Clause did not empower Congress to regulate crops that were used for personal consumption and never left the farm (never entered interstate commerce). The government’s position was that it had broad power under the Commerce Clause, including the power to fine (tax) surplus farm production.

Unfortunately, by 1942 when his case made its way to the U.S. Supreme Court, the judicial composition made it the most progressive Court of the 20th century. The Court included such justices as Hugo Black, Harlan Stone, William Douglas, Felix Frankfurter, and Robert Jackson. All but one justice had been appointed by President Roosevelt and the Court was clearly in his corner philosophically. Their unanimous decision in this case reflected the New Deal’s premise of unfettered government regulation.

Writing for a unanimous Court, Justice Robert Jackson (who would later serve, brilliantly and eloquently, as chief prosecutor at the Nuremberg War Crimes Tribunal) held that even un-marketed excess production has an effect on interstate commerce. As such, it can (or could) be regulated under the federal government’s commerce power, granted in Article I, section 8 of the Constitution, which permits Congress to “regulate Commerce . . . among the several States.” Filburn’s excess production, of itself, was insignificant, but when combined with other un-marketed excess wheat production, it had a clear impact on interstate commerce. Jackson wrote: “The maintenance by government regulation of a price for wheat undoubtedly can be accomplished as effectively by sustaining or increasing the demand as by limiting the supply…. That Filburn’s own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, taken together with that of many others similarly situated, is far from trivial. Congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing [the Second Agricultural Act’s purpose to stimulate trade at increased prices.” The rule laid down by Justice Jackson is that even if an activity is local and not regarded as commerce, it may still be regarded as such if, in the aggregate, it exerts a substantial economic effect, whether directly or indirectly, on interstate commerce. [This, by the way, is the very argument that the government is using to defend the Individual Mandate in the Patient Protection & Affordable Care Act, or Obamacare].

In simple terms, this is what the case boiled down to… Farmer Filburn grew wheat that he intended only for his own use, either for his family or to feed his animals. That wheat never “entered” the flow of commerce. It never crossed a state line, let alone even a county line. Ownership and control of property was one of the fundamental human liberties our Founders sought to protect from the reach of government. In fact, government was understood to be morally obligated to protect it, just as its owner would be allowed to protect it in the absence of government. For ownership of property to be complete, the “bundle of rights” associated with that property would include those to title, control, use, and ability to dispose. Those who’ve studied property law will remember the notion that owners of property (outright ownership) are entitled to the full and most beneficial use of their property – of course subject to the rule that their use and enjoyment doesn’t burden another’s use and enjoyment of their property (nuisance, for example). What the Supreme Court said in this case, in its convoluted reasoning, is that if Farmer Filburn hadn’t grown that extra wheat, then he would have gone to the market and purchased it. Then he would have been actively involved in commerce. In other words, the Court was saying that the government can compel a person to become actively involved in the flow of commerce. If that isn’t scary enough, ask yourself this: Why should the government require you to purchase from another what you can grow or produce yourself?

The fact is that the progressive Court had long considered the implications of the Commerce Clause and how broadly it should be interpreted. Consider how sharply the Court changed their views from year 1935 to 1942. In 1935, in the case, Schecter Poultry Corp. v. United States, a constitutional challenge was presented to FDR’s National Industrial Recovery Act which empowered the President to implement industrial codes to regulate weekly employment hours, wages, and minimum ages of employees. The Supreme Court struck the law down as exceeding the powers delegated to Congress and to the President. Writing for the unanimous Court, Chief Justice Hughes said: “The delegation of legislative power sought to be made to the President by § 3 of the National Industrial Recovery Act of June 16, 1933, is unconstitutional. Congress is not permitted by the Constitution to abdicate, or to transfer to others, the essential legislative functions with which it is vested. The Act itself is also unconstitutional because it exceeds the power of Congress to regulate interstate commerce and invades the power reserved exclusively to the States… If the Commerce Clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people, and the authority of the State over its domestic concerns would exist only by sufferance of the Federal Government. Indeed, on such a theory, even the development of the State’s commercial facilities would be subject to federal control.” [Schecter, pg 546]. Hughes prefaced the decision by noting: “Extraordinary conditions, such as an economic crisis, may call for extraordinary remedies, but they cannot create or enlarge constitutional power.” This comment particularly irritated the President. If the high Court was going to strike down his New Deal legislation, then he would replace the “nine old men” of the Court whose view of the Constitution reflected the “horse and buggy days,” through legislation. In fact, he proposed a bill which would require that for every Supreme Court justice who refused to step down when he reached the age of 70, one additional justice would be appointed. (6 justices were age 70 or older at the time). Debate over the bill was intense and it was eventually rejected.

In response to the Schecter decision, FDR uttered these words in a press release on May 31, 1935: “Are we going to take the hands of the federal government completely off any effort to adjust the growing of national crops, and go right straight back to the old principle that every farmer is lord of his own farm and can do anything he wants, raise anything, any old time, in any quantity, and sell any time he wants?”

In 1939, in the case Currin v. Wallce, the Supreme Court hinted that Congress’ power under the Commerce Clause is plenary or complete. The Court further suggested that Congress could extend its power over virtually any area that might contribute to the “General Welfare.”

The Supreme Court continued to debate the proper interpretation of the Commerce Clause and the proper classification of “indirect” activities for purposes of the Congress’ reach with respect to interstate commerce. It asked whether the Commerce Clause allows Congress to regulate only goods that move through interstate commerce or whether it allows for the regulation of production and the means of production as well. Seeming to abandon the rule set down in Schecter and moving towards the expansive view reflected in Currin, the Wickard Court finally settled that debate.

After the Wickard decision, economic situations would determine the extent of federal regulation. The case shows he growing willingness of the Supreme Court through the years to lend support to congressional efforts by offering an expansive reading of the Commerce Clause. (The Court also uses the two key clauses of the Fourteenth Amendment – the Equal Protection Clause and the Due Process Clause) in much the same way.

And as explained above, not only was the Supreme Court’s expansive reading of the Commerce Clause in Wickard an insult to the American people, but equally disturbing was its the position on an individual’s right to use, enjoy, and benefit from his or her own land.

(B). Arizona has taken the lead in challenging the federal government on Immigration. For Arizona, immigration is a matter of state security and safety.

1). On April 23, 2010, Arizona passed S.B.1070, a broad and strict immigration measure which would make the failure to carry immigration documents a crime and give the police broad power to detain anyone suspected of being in the country illegally.

2). The bill followed the cold-blooded shooting death of a local rancher by illegal drug smugglers

3). AZ’s illegal immigrant population nearly doubled in less than a decade, with a huge increase in associated illegal violence.

4). A similar bill was vetoed by the former AZ Governor, Janet Napolitano

5). AZ accused the government of not enforcing federal immigration laws

6). John Morton, Obama’s head of Immigration and Customs Enforcement (under Homeland Security), said his agency would likely not process suspected illegal immigrants referred to it under S.B.1070.

7). Poll after poll shows that the citizens of Arizona and America support S.B. 1070 by at least a 2-1 margin

Stand Down with the Federal Government –

1). On April 23, 2010, US Attorney General Eric Holder filed suit against Arizona to block S.B.1070

2). He threatened to file a second lawsuit challenging that its provisions amount to unlawful “racial profiling.” (depending how the first one plays out)

3). The government intended to declare S.B.1070 invalid and to preliminarily and then permanently enjoin its enforcement.

4). It asserted that S.B.1070 is preempted by federal law and therefore violates the Supremacy Clause of the United States Constitution.

5). On July 28, 2010, Judge Susan Bolton found in favor of the government’s position and blocked most of the key provisions of S.B.1070

6). On April 16, 2011, the federal Court of Appeals for the 9th Circuit affirmed the decision. [the 9th Circuit is the most liberal of the 13 federal appellate courts and one of the most activist in the nation. It held the Pledge of Allegiance to be unconstitutional]

7). Governor Brewer intends to fight on and take the case to the Supreme Court under a States’ rights argument (10th Amendment)

The 9th Circuit Hands Down an Activist Decision Against the Rights of AZ –

1). The decision went as far as to cite the views of anti-American dictators as a justification for holding against S.B.1070

2). Justice Richard Paez, who wrote the decision, argued that the law has “created actual foreign policy problems.” Among the “problems” he cited was the disapproval of the Mexican government, the United Nations Human Rights commissioners, the government of Bolivia, and the Organization of American States. The UN Commission on Human

Rights just happens to include such dictatorships such as Cuba and Saudi Arabia. And the Organization of American States includes such members as Cuba and the socialist dictatorships of Bolivia and Venezuela.

3). The United States has not had diplomatic relations with Cuba for more than fifty years. In 2008, Bolivian President Evo Morales said that all Latin American nations should expel American ambassadors and cheered on a mob who tried to burn down our embassy. He said, “I don’t mind being a permanent nightmare for the United States.” Venezuela’s dictator Hugo Chavez has spewed so much anti-American rhetoric that even Barack Obama expelled their ambassador just three months ago. Chavez had called Bush the “devil” and Obama “Satan.”

4). The idea that the S.B.1070 will affect our relationships with these countries is preposterous.

5). Judge John Noonan wrote a concurring opinion against Arizona in which he argued that S.B.1070 would upset our relations with Mexico, which he called a “policy…of cordiality, friendship and cooperation.” Really?

[Senator Russell Pearce, “9th Circuit Court of Appeals’ S.B.1070 Decision Demonstrates Contempt for Constitution,” Intellectual Conservative, April 16, 2011]

Repeal of the 17th Amendment –

The 17th Amendment states:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.”

1). The 17th Amendment altered the wording of Article I, Section 3, clause 1, which read: “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six years, and each Senator Shall have one vote.”

2). Originally, each Senator was elected by his state’s legislature to represent that state in the Senate.

This was intended to protect each state’s power within the federation established by the Constitution by having its own direct representation in the Congress.

3). The amendment was adopted in 1913.

4). The 17th Amendment was a slap in the face to the States and to States’ rights.

5). Texas Governor and Presidential hopeful Rick Perry is talking about repealing the 17th Amendment and also there is talk that the Tea Party will try to force this issue James Madison thought that the States should be active participants in the Federal Government. He said: “Whenever power may be necessary for the national government, a certain portion must be necessarily left with the states, it is impossible for one power to pervade the extreme parts of the United States so as to carry equal justice to them. The state legislatures also ought to have some means of defending themselves against the encroachments of the national government. In every other department we have studiously endeavored to provide for its self-defense. Shall we leave the states alone un-provided with the means for this purpose? And what better means can be provided than by giving them some share in, or rather make them a constituent part of, the national government?”

Since the enactment of the 17th Amendment, the states have been reduced from an equal l partner with the federal government to a common lobbyist, which has resulted with the loss of state sovereignty, loss of state rights, and a host of federal mandates some of which are funded and some which are not (requiring tremendous state resources the states don’t have). Such mandates include the No Child Left Behind Act, Medicare, Medicaid, and Obamacare.

The Repeal Amendment —

The Repeal Amendment, sponsored by Senator Mike Enzi (R-WY) and Rep. Bob Bishop

(R-UT) and introduced on May 15, 2011, would basically give states a veto over Washington. It is the brainchild of distinguished Georgetown Constitutional Law Professor Randy Barnett. The amendment states:

“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for the purpose that particularly describe the same provision or provisions of law or regulation to be appealed.“

The Amendment was inspired by Barnett’s April 2009 article in the Wall Street Journal, which described Constitutional remedies for taking our country back. The Amendment was publicly proposed for the first time on September 15, 2010. Just two months later, it gained the support of prominent legislators in nine states: Virginia, Utah, New Jersey, Georgia, Texas, Minnesota, Florida, Indiana, and South Carolina. Virginia has led the way with support from Governor McDonnell, Attorney General Ken Cuccinelli, House of Delegates Speaker Bill Howell, and Lieutenant Governor/Senate President Bill Bolling, in addition to US Representative Eric Cantor.

Rep. Cantor explains the need for the Repeal Amendment: “Cantor explains the need for the Repeal Amendment: “Washington has grown far too large and has become far too intrusive, reaching into nearly every aspect of our lives. In just the past few years, Washington has assumed more control over our economy and the private sector through excessive regulations and unprecedented mandates. Our liberty and freedom has lessened as the size and scope of the federal government has exploded. Massive expenditures like the stimulus, unconstitutional mandates like the takeover of health care, and intrusions into the private sector like the auto-bailouts have threatened the very core of the American free market.

Since the Repeal Amendment has been proposed, it has gotten a lot of attention. On November 23rd, Professor Barnett and Virginia House Speaker Howell went on Fox Business News to discuss the proposal with Fox News’ Senior Legal Analyst, Judge Andrew Napolitano. Napolitano was ecstatic about the idea. He said, “This sounds almost too good to be true, if it could happen. We wouldn’t have unfunded mandates; the Tenth Amendment would reign supreme; the states would be sovereign within their own borders…” But he also shared some concerns, one of them being the difficulty in adding a constitutional amendment (which was the very intent of our Founders in adding Article V).

According to Article V of the U.S. Constitution, there are two ways it can be accomplished:

1). Both Houses of Congress agree to propose an Amendment with a two-thirds majority vote.

2). Two-thirds of state legislatures (34 states) pass a resolution to call for an Amendment Convention to vote on the amendment.

In both cases, the amendment must be ratified by three-fourths of the state legislatures (= 38 states).

Some of Napolitano’s other concerns include the uncertain nature of state Amendment Conventions and the willingness of Congress to vote against its own interests. In his interview, the Judge asked: “If it turns out the states are successful in suing for an Amendment Convention, would it become a ‘runaway Convention’?” (by this, he means that once the states call such a convention, nothing is off the table. They can discuss anything). He also asked whether Congress in fact would bring the Amendment to the floor of Congress being that it so boldly confronts their power.

In addressing the concern about Congress’ potential hostility, Delegate Howell responded that if such an amendment is requested by two-thirds of the states, Congress has no choice in the matter. He acknowledged the influence that Tea Party groups have had on the attitudes of many in Congress, especially regarding fiscal conservatism and limited government.

Supporters of the Amendment Supporters are optimistic, saying the time has come for States to take back the power Congress has increasingly usurped. And maybe, just maybe, they are right.

QUESTION: What is Agenda-21 and should the States be concerned?

–> Agenda-21 is a massive land regulation initiative. Yes, the States should be concerned. Agenda-21 will impose hugely burdensome and expensive regulations on private landowners to live sustainably with respect to natural resources and the hyped-up anti-global warming movement. States should defend the rights of its citizens to own and enjoy their property (as long as they don’t burden the rights of others in doing so).

Agenda-21 will eventually impact private land development in every state in the United States. Agenda 21 is a UN initiative on sustainable land development, adopted by more than 178 Governments at the United Nations Conference on Environment and Development (UNCED) held in Rio de Janerio, Brazil, in June 1992 and then reaffirmed at the World Summit on Sustainable Development (WSSD) held in Johannesburg, South Africa in August-September 2002. It is a comprehensive plan of action to be taken globally, nationally and locally by organizations of the United Nations, governments, and major groups in every area in which humans impact on the environment. It will involve massive regulation and will be implemented through ICLEI, a network of local governments committed to sustainability. So far, there are 10 cities or counties alone in my state of North Carolina which have joined ICLEI to implement sustainability measures locally – Asheville, Carrboro, Cary, Chapel Hill, Charlotte, Chatham County, Durham, Orange County, Raleigh, and Winston-Salem.

Add this new level of regulation on top of the Food Safety Bill, supported by our North Carolina’s own Senator Richard Burr (booo!!), which just granted the Food and Drug Administration (FDA) new powers (just what it needs) to regulate farm land and the farming industry. The Food Safety Bill will already do incredible harm to farming in NC. Farmers and others to make a living off the land cannot absorb any more regulation and continue to survive? What is private property worth when the means to control it, enjoy it, and use it for its maximum potential are destroyed by onerous government regulation?

As Ronald Reagan asserted in his “A Time For Choosing” speech in 1964: “The notion of ‘the full power of centralized government’ was the very thing the Founding Fathers sought to minimize. They knew that governments don’t control things. A government can’t control the economy without controlling people. And they know when a government sets out to do that, it must use force and coercion to achieve its purpose. They also knew that outside of its legitimate functions, government does nothing as well or as economically as the private sector of the economy. Private property rights are so diluted that public interest is almost anything a few government planners decide it should be…. Now it doesn’t require expropriation or confiscation of private property or business to impose socialism on a people. What does it mean whether you hold the deed or the title to your business or property if the government holds the power of life and death over that business or property? And such power already exists. The government can find some charge to bring against any concern it chooses to prosecute. Every businessman has his own tale of harassment. Somewhere a perversion has taken place. Our natural, unalienable rights are now considered to be a dispensation of government, and freedom has never been so fragile, so close to slipping from our grasp as it is at this moment. This is the issue.. Whether we believe in our capacity for self-government or whether we abandon the American Revolution and confess that a little intellectual elite in a far-distant capitol can plan our lives for us better than we can plan them ourselves.”

People need to keep their ears open for initiatives in their counties that incorporate the typical buzz words: “sustainability,” “green,” “recycle,” etc.

QUESTION: Should the States be concerned with the bloated size of the federal government?

–> Yes. The government was intended to be one of limited powers and responsibilities. The bulk of the powers were to remain with the people and the States, so that individuals could truly enjoy and benefit from their God-given liberties. Currently, there are 473 government departments and agencies, many which are duplicative. [See: http://www.usa.gov/directory/federal/index.shtml] The current trend is for the federal government to ignore the responsibilities it was initial vested with (such as Immigration and National Security) and to insinuate itself in all state and personal affairs.

According to Madison, the idea was to keep the power base close to the people. The emphasis was on strong local self-government. The states would be responsible for internal affairs and the federal government would confine itself to those areas which could not be fairly or effectively handled by the states (such as raising an army, providing a Navy, regulating Commerce among nations and among the several states, raising revenue, regulating money, and establishing rules for Naturalization and Immigration). Power closest to the people is almost most responsive to the people.

It is said that there is so much government regulation that at any given moment, each of us is violating one law or another. It’s not because we simply can’t abide by all the laws (which perhaps we can’t), but it’s because the laws are so numerous and so volumnous that we simply can’t keep up. John Locke warned us about allowing the government to regulate too much and to make too many laws. When laws become too numerous and detailed, they can destroy liberty just as surely and effectively as having no law.

Thomas Jefferson said: “To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.”

QUESTION: Should the States be concerned about the growing “Nanny State” ?

–> Absolutely. The government taxes individuals excessively – to fund big government and to “condition” and control states through federal grants and subsidies. States accept government funding and its conditions because they can’t raise enough state funds to do everything it needs. They can’t raise enough state funds because they know that individuals are already taxed excessively by the federal government and they can’t burden their residents with increased state taxation. Money that is kept local is most easily controlled by the people for its most beneficial and highest uses. Local politicians who control the money feel more accountable to the people. Funding is less likely to be needed from the federal government which keeps them from being “commandeered” by the government to serve its purposes and advances its policies.

Early in the 20th century, the federal government adopted the mindset that the government should take care of those in our society who genuinely can’t do for themselves and those who temporarily fall behind. They understood that a compassionate government should provide a safety net for its citizens. Although the vision was well-intentioned, the temptation for abuse and fraud was not only felt by the people themselves but by government as well. The “safety net” quickly turned into a “way of life” for to many people. The “safety net” quickly became the new “American Dream” and it changed the character of the types of immigrants who come to our shores and across our borders.

Social Security was once considered a ‘right’ by American workers because it was their money, after all. The government withheld Social Security payments to keep in a “safe” fund for the individual once they retired. It was a “safety net.” If the person had no other means of income, at least he or she could collect the money the government ‘forced’ them to set aside. But Social Security became a ‘right’ even to those who didn’t contribute. Then the government began to raid the people’s funds. It no doubt used the money to provide other “entitlement” programs.

Soon we saw the “safety net” become an automatic “entitlement.” And the programs grew. And the people became more and more dependent on the government than they did on their own initiative, ambition, and resources. The social pressure of success and contribution – the mentality that created this nation and helped it flourish – was gone. And just as little children become unruly when they are not shown discipline, Americans have become a morally and ethically weaker breed. The need for a good education is no longer an imperative. The concepts of risk and sacrifice and innovation and hard work don’t equate as strongly with the notion of the “American Dream” as they used to. Stable families have been eroded because where young men and women once had to make good personal choices in their lives, government programs are easily available so that those choices don’t have to be made. A woman doesn’t need a bread-winner any longer so she can stay home and raise well-mannered, productive, studious children. She can have children and the government will fund them AND raise them !! The Nanny State has been created. The problem is that government funding doesn’t foot the entire bill. The States pay a huge chunk into these programs. And what do they get in return? They get dumbed down populace with little respect for rules and social norms and a generational mentality of dependence.. not to mention the increase in crime and social decay. They become a drain on the state rather than a contributor.

In his “A Time for Choosing” speech, Ronald Reagan talked about government’s role in social planning and wealth distribution. In addressing the mentality that lead to such social planning, he said: “We have so many people who can’t see a fat man standing beside a thin one without coming the conclusion the fat man got that way by taking advantage of the thin one. So they’re going to solve all the problems of human misery through government and government planning. Well, now, if government planning and welfare had the answer—and they’ve had almost 30 years of it—shouldn’t we expect government to read the score to us once in a while? Shouldn’t they be telling us about the decline each year in the number of people needing help? The reduction in the need for public housing? But the reverse is true. Each year the need grows greater; the program grows greater.”

Looking at the number of people on welfare who are obese and lazy, one today can ‘come to the conclusion that they got that way by taking advantage’ of those who aren’t.

At an event at the Ronald Reagan Library on August 24, Senator Marco Rubio said: “Though the vision was well intentioned, it was doomed to fail from the start. It was doomed to fail from the start first and foremost because it forgot that the strength of our nation begins with its people and that these programs actually weakened us as a people. You see, almost in forever, it was institutions and society that assumed the role of taking care of one another. If someone was sick in your family, you took care of them. If a neighbor met misfortune, you took care of them. You saved for your retirement and your future because you had to. We took these things upon ourselves and our communities and our families and our homes and our churches and our synagogues. But all that changed when the government began to assume those responsibilities. All of the sudden, for an increasing number of people in our nation, it was no longer necessary to worry about saving for security because that was the government’s job. For those who met misfortune, that wasn’t our obligation to take care of them, that was the government’s job. And as government crowded out the institutions in our society that did these things traditionally, it weakened our people in a way that undermined our ability to maintain our prosperity.

Program after program was crafted without any thought as to how they will be funded in future years or the impact it would have on future Americans. They were done with the best of intentions, but because it weakened our people and didn’t take account the simple math of not being able to spend more money than you have, it was destined to fail and brought us to the point at which we are at today.

Americans in the 20th Century built the richest, most prosperous nation in the history of the world. And yet today we have built for ourselves a government that not even the richest and most prosperous nation in the face of the Earth can fund or afford to pay for. An extraordinary tragic accomplishment, if you can call it that. And that is where we stand today. And so, if defining the proper role of government was one of the central issues of the Reagan era, it remains that now.”

Senator Rubio is right. It is all about the proper role of government. When government embraces those limited areas it was intended to be responsible for, and leaves the remaining matters to the States and to the People, then there will be true competition and prosperity. And it is the States which need to take the lead and set that division of power and responsibility back to where our Founders intended. The nation needs a massive re-adjustment and the States must take the lead. They need to reign in the power of the federal government, for the sake of liberty and for the sake of our children.

Calvin Coolidge, the 30th President of the United States, once said: “To live under the American Constitution is the greatest political privilege that was ever accorded to the human race.”

We have inherited our freedoms at great cost from our forefathers. Those precious freedoms were once well- protected under the our Constitution, thanks to a group of intelligent, forwarding-thinking and liberty-minded public servants. The question we must ask ourselves today is whether our freedoms are as well-protected as they need to be. Secession is not the answer, but education, recognition, discussion, perseverance, and commitment are. If we aren’t willing to do that, then our Constitution is worth nothing more than the piece of paper it was written on.

As Ronald Reagan warned: “You and I have a rendezvous with destiny. We’ll preserve for our children this, the last best hope of man on earth, or we’ll sentence them to take the last step into a thousand years of darkness.”

References:

1). Wickard v. Filburn, 317 U.S. 111 (1942)

2). Texas v. White, 74 U.S. 700 (1869). Referenced at: http://www.usconstitution.net/constfaq_a4.html ]

3). US Constitution Online. http://www.usconstitution.net/constfaq_a4.html

4). Chuck Braman, “The Political Philosophy of John Locke and Its Influence on the Founding Fathers and the Political Documents They Created,” 1996.

Referenced at: http://www.chuckbraman.com/Writing/WritingFilesPhilosophy/locke.htm]

5). William Rawle, A View of the Constitution of the United States. Philadelphia: H.C. Carey and I. Lea, 1825.]

6). “Texas Secession Facts,” Texas Secede!. Referenced at http://www.texassecede.com/faq.htm

7). Thomas Paine, “The Truth About Secession,” NoCompromiseMedia , June 25, 2009. Referenced at: http://nocompromisemedia.com/2009/06/25/the-truth-about-secession/ ]

8). “Wickard v. Filburn,” Common Sense Americanism. Referenced at: http://www.csamerican.com/sc.asp?r=317+U.S.+111

9). “Wickard v. Filburn – Supreme Court Extends Commerce Power To Production.” Referenced at: http://law.jrank.org/pages/13433/Wickard-v-Filburn.html

10). http://www.constitution.org/primarysources/primarysources.html (Primary Sources)

11). Federal Directory of Departments and Agencies: http://www.usa.gov/directory/federal/index.shtml

12). “Lincoln on Secession,” The Real Abraham Lincoln. Referenced at: http://pointsouth.com/lincoln/secession.htm

13). James Ostrowski, “Was the Union Army’s Invasion of the Southern States a Lawful Act?,” Secession, State, and Liberty, New Brunswick, N.J.: Transaction Publishers, 1998). Referenced at: http://www.lewrockwell.com/ostrowski/ostrowski31.html]

14). Senator Russell Pearce, “9th Circuit Court of Appeals’ SB 1070 Decision Demonstrates Contempt for Constitution,” Intellectual Conservative, April 16, 2011. Referenced at: http://www.intellectualconservative.com/2011/04/16/9th-circuit-court-of-appeals-sb-1070-decision-demonstrates-contempt-for-constitution/

15). James Simpson, “Breaking – Power to the People! Repeal Amendment Gaining Strength,” Emerging Corruption, November 27, 2010. Referenced at: http://emergingcorruption.com/2010/11/breaking-power-to-the-people-repeal-amendment-gaining-strength/

16). “Is, as Lincoln Said, The Union Perpetual?”, Secession University. Referenced at: http://secessionu.wordpress.com/is-the-union-perpetual/

17). Schecter Poultry Corp. v. United States, 295 U.S. 495 (1935). See Cornell University Law School. Referenced at: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0295_0495_ZS.html.

18). Currin v. Wallce, 306 U.S. 1 (1939).

19). Thomas Woods, The Politically Incorrect Guide to American History, 2004, Regnery Publishing, Washington DC.

20). Marco Rubio, Speech at the Ronald Reagan Library, Aug. 24, suicide by hanging after being placed in cells that had been identified as requiring a simple fix to remove attachment points that could support a noose)

      
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34 Responses to SECESSION: DOES A STATE HAVE THE RIGHT TO SECEDE FROM THE UNION?

  1. Rich says:

    i too grew up in the north and always had a bad taste for south carolina. a visit to charleston and spending some time learning “their” history from the revolution up through the civil war led me to think what lincoln had done was wrong. it was senseless. great article!

  2. Hans says:

    Excellent. Please accept my congratulations on a fine article.

    One important reference to add to your bibliography:

    “The Republic of Republics”, published by Bernard Janin Sage in 1878
    http://confederatereprint.com/product_info.php?cPath=34&products_id=93

    … one of the most comprehensive treatises ever published on the doctrine of State sovereignty and the inherent right of a State to secede from the Union. Written by a New Orleans lawyer who was to have been one of Jefferson Davis’ counsel in the treason trial which never occurred…

  3. Richard Jungels says:

    I learned quite a bit of history that was not taught to me in school. Very good article, will save it so I can always go back to it when the time comes. Revolution? quite possible, being 80 years of age, I just may be an active part of it even if just cannon fodder. Thank you.

  4. Gordon W Moss says:

    I am a trial lawyer with 45 years experience with probably around 400 jury trials, not to mention bench trials, appellate cases, and cases that were setttled. I am sure that you taught you students a lot of history and theory in your con law classes. However, are you aware that as a practical matter, you cannot sue the U.S. Government seeking a declaratory judgment without its consent? Who would be the parties to the lawsuit?
    Do you think that the nU.S would simply agree? Do you want another civil war?

    • David says:

      Did you mean to say another “war of northern aggression”?

    • David says:

      Fortunately for me, I am not an attorney. If I was, I would point out the the Constitution which forms the basis of our country was established by overthrowing the Articles of Confederation. I would also point out the representatives who discarded the Article of Confederation for a “perpetual union” did two things without the consent of the existing government.
      1. They usurped the government by not gaining unanimous consent as outlined in the Articles.
      2. The Articles were a perpetual union of the individual states. Again they usurped power by overthrowing the perpetual government.

      I doubt politicians will make any distinctions concerning the future of the Constitution when it does not suit their purposes. Just look at the way our legal system has collapsed in the past week by allowing the New Black Panthers to issue a bounty on a man who is in hiding for fear of his life. Any thoughts on the role of the Department of Justice as it currently exists under Eric Holder?

  5. Diane Rufino says:

    Hello Mr. Moss, I am extremely in awe of your experience. My specialty is patent law and other intellectual property. When I was first starting out, I went to court only to represent minor criminal violations. I appreciate you taking the time to read my piece on secession. I wanted to put a few thoughts out there —

    The Declaration of Independence reads: “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 of 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 effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
    The Declaration announces that it is the right of the people to abolish their government. It doesn’t say that they People must first clear it with a court of competent jurisdiction. The right is an inherent one, just as the rights of Life, Liberty, and Property are. “God who gave us life gave us liberty” and therefore, liberty is indivisible from life itself. I look back at our founding, and great men like Thomas Jefferson, James Madison, and John Adams embraced a concept known as ‘ordered liberty’ which was reflected in our founding documents and is the basis for our republic. Ordered liberty stems from “Natural Law” which acknowledges that that there is a natural order to the universe: Creator -- Universe -- People -- Governments. There is a Creator who created the universe and then created people. People, in turn, form into communities, and in order to keep their communities ordered, they establish local governments. Finally, local governments give rise to central governments. Natural law is what spontaneously arises when there is no government, because of “who we are” and who created us. Individuals precede law.
    Because of this “natural order,” man has (and should have) a relationship with his Creator. At the very least, it should be one of respect. John Locke, Thomas Hobbes, and Montesqieu and others applied this concept to government. In an ordered society, first you have man as an individual. Only when individuals come together to live in a society is there a need for government. So individuals, with sovereign/ inherent liberty rights, precede government. Therefore, since individuals are the ones who agree to be governed and how to be governed -- because after all, it is for their mutual benefit and must serve their interests -- the purpose of government, first and foremost, is to protect individual rights (particularly those of Life, Liberty, and Property, and all those rights and liberties associated with them). Individuals have the right to defend themselves and their property. True law derives from this right, not from the arbitrary power of a government.
    Governments are created by compact -- an inherent agreement by the people to obey laws in return for the protection of their rights and the service of their liberty interests. Many governments are evidenced by a constitution, although it isn’t necessary, although a written instrument sets out in particular detail the relationship between itself and the People .. that is, the bounds of its authority. Governments therefore are supposed to be limited. While some laws are necessary to promote and even enlarge individual liberty, too many laws burden liberty and oppress people. The balance shifts. Instead of protecting and serving the People, it becomes their master. And then that is when we get to the point where the People review the situation and decide whether it is appropriate to form a different compact, or as Thomas Jefferson so eloquently stated: “to institute a new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
    I certainly don’t advocate secession. We lost almost 620,000 young men when the South seceded from the Union and Lincoln fought to deny them that opportunity. But it has to be an option as a matter of last resort otherwise we slide down the path to tyranny without a way to salvage the liberty that our Founders secured in way that only a limited government can assure.
    Our country was founded on the liberty right of self-determination and the notion that it is a free people who determine the proper size and scope of government. The People, in fact, made that decision back in 1787-88 when they selected members to their state conventions to ratify the Constitution (a compact) which created their government .
    Why would a state file a lawsuit against the government, in federal court -- a branch of that very government ? Can they truly that court to be a fair and neutral umpire in assessing the right of a state to sever its ties with the federal government? The States have essentially been down that road and the Supreme Court has said that the compact can’t be dissolved.
    Furthermore, why would a state file a lawsuit in federal court when it is well-known that its judges and justices alter and interpret the Constitution willy nilly and often in contradiction to the words, warnings, and intention of our Founding Fathers and the intention of the states as they often made abundantly clear in their ratification conventions when they ratified the Constitution. Why would the states take their chances with federal judges who would easily misconstrue the terms of the contract (which they view as a “Living Document”). It is a mindset that clearly serves the federal government’s purposes best.. In fact, it serves the federal government’s purposes exclusively and in almost all cases, it is does so at the expense of the States.
    The purpose of secession is not to harm the nation or endanger the Union, but rather to preserve liberty and the historic experiment that our Founders began when they wrote the Declaration of Independence and US Constitution. Secession is the rightful remedy to preserve the principles and values upon which our country was founded and embodied in the American Revolution. The principle underlying secession is that of social compact. That is the principle which underlies government -- the understanding of how people agree to be governed and agree to abide by laws. People always precede government. It’s only when people group together in a community that government is needed to serve common interests and “protect. and enlarge” individual liberty. After all, what is an individual’s liberty in life and property worth if he can’t leave his home and land in order to work and travel because he must protect his family and property from evil-intentioned individuals? Hence, that’s the role of government. A social compact is like a contract. Constitutions are the instruments to memorialize the intentions of people with respect to their government. Constitutions protect the individual. Just like contracts protect those who enter into them and sign them. The Constitution is an agreement (contract), signed by the States on behalf of the People. What it meant in 1787 is what it is supposed to mean today. That’s the WHOLE PURPOSE of a written Constitution (otherwise, repeal it and start over again, or amend it legally) Can you imagine a reasonable person entering into an agreement of significant consequence without knowing how that agreement will be changed or interpreted in the future? Would you like the contract to the purchase of your home to be re-interpreted and provisions changed at will during the life of that contract? And especially by the party that has more power than you? No reasonable party would ever enter into such an agreement -- especially with such enormous consequences as the States did in 1787-88.
    It is said that nations typically follow a predictable path of progression: From bondage to spiritual faith; then from spiritual faith to great courage; then from courage to liberty; then from liberty to abundance; then from abundance to complacency; then from complacency to apathy; then from apathy to dependence; and finally, from dependence back into bondage. We are at the “dependency” stage. We think the federal government -- all branches -- are the answer. We assume they are the final arbiters of what the Constitution means, what government should be, what government should do, and what laws the people MUST obey. (A perfect example is the desire of Justices Ruth Bader Ginsberg, Sonia Sotomayor, and Elena Kagan to have a second amendment case reach the Supreme Court again after another liberal justice has been appointed to the Supreme Court so they can “get it right this time.” District of Columbia v. Heller was a narrow 5-4 decision. These liberal justices believe strongly in government gun control -- despite the overwhelming authority to the contrary -- and Ginsberg has already gone public urging another case to come before the high court “after Obama wins a second term.”)

  6. Evan Fisk says:

    I may only be a junior in high school but I’ve fought with my US history teacher all year about the one sided view on American history. The government only want us youth to view their version of history and push back their own wrong thoughts. I believe the only true way for the country to bring itself up off its knees and back to economic rightness is to break it up. I believe states should be able to freely leave the union and govern themselves according to their needs, and not to the federal needs. But sadly this will not happen with us as a people united and working together to bring down the corrupt system that we call our government. The truth is, the government willl freak out if a state said, enough, we’re done being opressed, and rose up from the union. The government would send armed forces and say it was some crazy anti government group trying to be unlawful, but in truth it’s just everyday men and women wanting what’s right for them. But the oppressed will always rise up out of the oppressors in due time, and I hope that time is coming soon so I may be on the front of it, helping in a new, more just freedom.

  7. Betty says:

    Dear Ms. Rufino,

    I’ve never read a political article on the web that was as carefully, thoughtfully, and prudently researched as yours. The issue of secession is on more and more people’s minds nowadays. You’ve done Americans a real service in presenting this specific history, enabling us to consider our options for the present more wisely. May I thank you for the untold hours of work that went into this research, and the beautifully-written presentation. I would hope you’d send your article to every state governor and attorney general, where it might be a useful resource.

    Cordially,

    Betty

    • Robert says:

      Amen, Betty,
      I know there must be multitudes just waiting for such a time as this, someone had to come forward or the rocks would soon cry out!!!

  8. Amen. I have been researching this topic for the past week. I, too, was educated in the North, but I lived in Arizona for five years in the late 1970s. While there, I gained a different perspective on the United States. When President Obama took Arizona to court over the immigration issue, and thereby forced me into opposition to the state of Arizona, I was upset. When the Supreme Court ruled in favor of the United States, I began researching the topic of secession. The more I read, the angrier I became at myself for never having questioned the one-sided history lessons from my youth. In the past week, Abraham Lincoln has moved from being my most revered President to my most reviled. It cost more than one-half million citizens their lives in order for Lincoln to achieve his personal goal. His actions were unconstitutional and criminal, yet he is memorialized. Lincoln now has earned my contempt. I am in the process of writing a letter to Justice Scalia. He, much to my shock, responded to the question of secession by stating that the Civil War resolved the issue by determining that a state does not have the right to secede. His reasoning escapes me; his logic remains a mystery. Since secession is not mentioned in the Constitution, it, by default, is covered under the Tenth Amendment. There truly is a very simple answer to a highly controversial question. Read the Constitution; our Founding Fathers really did know what they were doing.

  9. Christine,
    I appreciate your comments so very much. We apparently both went through the same epiphany. If more people can think things through the way that we have -- and I don’t mean that to sound arrogant, as if we have any greater capability to reason and apply logic than anyone else -- than our country would be in a far better place.

    I talk to people about the Constitution all the time and the one thing that I hear, especially from liberals and young people, is that the Constitution needs to be a “Living Document” because there is no way that 18th century colonists could have predicted the problems and advances we would have today. They point to the internet, the high divorce rate, the increase in homosexuality and their “rights” to be married, the increase in diversity, the increase in the number of atheists in the country, the increase in poverty and unemployment, and more. Unfortunately, these people have no idea how much our Founding Fathers knew because human nature tends to be predictable under similar circumstances. Arguably, however, the only thing that they couldn’t have fathomed is the internet. As bad as things are now… as crazy as things are with people exploring all kinds of lifestyle choices and sexual preferences and making all kinds of individual statements, our Founders have studied cultures far worse. There is nothing in this country that our Founders didn’t appreciate from looking at the Roman Empire, the Greeks, the Egyptians, the Saxons, the Normans, medieval England… I’m finishing a paper now that makes the argument that it is precisely because our Founders studied the fates of almost all the regimes of history that they uniquely understood that power must always remain in the people’s hands and they must always have the power over the life and death of their government (particularly when it becomes oppressive). For that reason, they gave us a government grounded on timeless principles. These principles were announced in the Declaration and were embodied within the framework of our Constitution…. principles such as the sovereignty of the Individual (inherent, inalienable rights), the fact that government serves the people and not vice versa, and the right to abolish a government that becomes destructive of the rights and interests of the people. Our Constitution is not a “living document” because it’s foremost goal is to protect these fundamental principles. And so, very simply but eloquently and brilliantly, our Founders gave us a limited government, with several checks and balances so that it can always be in service of and accountable to the people. Believing that our Constitution is no longer a strict document but one that “lives and breathes” is an undisciplined license to chip away at all those protections that are given to us as against our government.

    That is why, in a nutshell, that I believe that secession is a fundamental principle. I believe it is as fundamental as the declaration that our rights are endowed by our Creator -- inherent, fundamental, and inalienable.. never to be separated from us by a government. The very birth of our nation was a result of secession. The Declaration of Independence was a secessionist document pure and simple. If you compare it to the Articles of Secession submitted by South Carolina, for example, there isn’t much difference at all. They fundamentally state the very same things.

    The Civil War was not a war over the “right” of secession, and that’s naive and ludicrous for Justice Scalia to suggest to. It was a war over an act of secession. The states remaining in the Union (the northern states and western states), led by President Lincoln, were determined not to let the southern states break their bonds of allegiance. It was a war declared by President Lincoln to forcibly restore the Union. It was an act of aggression blinded by the personal and incorrect views of the Constitution, as well as the personal perceptions of the Union, by a tyrant president. It was a war forced upon the South to deny them their rightful exercise of self-determination. The only thing settled by the Civil War is that the stronger army defeated the weaker army and unto the victors go the spoils of war. Hence, the North succeeded in forcing the southern states to re-join the Union… against their will and against their fundamental rights of self-determination. Court decisions are all over the place on secession, but no court of law can take away the rights of free men because the most fundamental principle upon which our country was founded is that the individual is the source of all rights and powers. It is from the individual that government precedes. Governments enjoy powers that are borrowed from the people so that they can serve the people. People delegate their power and they can take it back. Courts are instruments of government and therefore can never trump the individual.

    That’s why we have all the nullification movements springing up. That’s why states are passing “Sovereignty Resolutions.” They are stepping up to re-assert their sovereignty and their rightful position as parties to the compact that created the Union and therefore to the agreement that created the government. Government is “their creation” on behalf of the people.

    When I talk to groups about the original intent of government and “Nullification” and even secession, I ask them this question: “Imagine that our President is Adolf Hitler. He is beginning to take away staples such as the right to speak out freely, to assemble, to publish news, to own a gun, to be secure in your home, to own property, and to be free from searches and seizures by government. How would you want your government to operate? Would you want those checks and balances to work faithfully? Would you want your state to stand up to him and shield you from his tyrannical demands? Would you want your state to dissolve all political bonds with him and take your chances as an independence sovereign state rather than submit, fearfully, your property and even your life? What is life worth when a government holds all the power over that life -- making all major decisions for you and restricting your choices?

    It was unfortunate that a conservative justice of the caliber of Antonin Scalia chose to take a position opposing secession. I take it you are referring to that brief letter he wrote a young screenwriter in 2006, in which he wrote: “I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court. To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, “one Nation, indivisible.”) Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit. I am sure that poetic license can overcome all that — but you do not need legal advice for that. Good luck with your screenplay.”

    Again, I believe he twisted the constitutional issue upon which the Civil War was fought. In fact, there was no constitutional issue at the core of the Civil War. It was a principle and not a constitutional issue… It was (and is) the very principle which guided our very creation as an independent nation.. the right of a people to chose their form of government. Another principle was the one which voluntarily pulled us together as nation of sovereign states -- the law of compact.

    Justice Scalia understands the power of contract (compact). He is a strict constructionist who looks to the intent of parties when they enter into an agreement. No state intended to be organized and permanently bound into a federation with a government that could ultimately destroy their sovereignty and interests. The greatest concern on the part of the states at the time of the adoption of the US Constitution was their sovereignty. They debated very strongly over whether the creation of the Union thru the Constitution would undermine their sovereignty. The Federalist Papers assured them that the only loss of sovereignty would be in the very limited areas of regulation assigned to the federal government (see Federalist No. 45). Look what Scalia wrote in his scathing dissenting opinion this past June in the Arizona v. United States decision (state immigration law SB 1070; decided June 25, 2012): “But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Govern­ment that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws? A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? Today’s judgment surely fails that test. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.”

    Many states don’t agree with Justice Scalia, and as we all know, the states are stronger than the federal government. The states created the federal government. It is their creation. As Federalist No. 45 makes abundantly clear, the bulk of power remains (“is reserved”) to the states. This is our Tenth Amendment. Just ask the state of Montana if it agrees with Justices like Scalia. In 2008, while it was waiting for the US Supreme Court to hand down its opinion in District of Columbia v. Heller (second amendment case), the Montana State Legislature passed a resolution, a “State Sovereignty” Resolution – H.J. 26 – asserting its state sovereignty and announcing that if the Supreme Court failed uphold the 2nd Amendment as an individual right to have and bear arms, then the state of Montana would consider it a fatal breach of the Compact and therefore it would nullify and void its bonds with fellow states. In other words, it threatened secession if the Supreme Court took away gun rights.

    [Heller was the first time in seventy years that the Supreme Court heard a case regarding the central meaning of the Second Amendment and its relation to gun control laws. The District of Columbia passed legislation barring the registration of handguns, requiring licenses for all pistols, and mandating that all legal firearms must be kept unloaded and disassembled or trigger locked. A group of private gun-owners brought suit claiming the laws violated their Second Amendment right to bear arms. The government claimed the 2nd Amendment only applies to militias, such as the National Guard, and is not an individual right. The federal district court in DC sided with the government and upheld the federal ban on private gun ownership. The Court of Appeals reversed. With four liberals on the Court who believed that the second amendment was only a collective right and Justice Anthony Kennedy as the justice who sits on the fence, the right to have and bear arms was precariously close to being destroyed]. Montana was not willing to take a chance. It was not going to sit by, as a neutered, lobotomized party, and allow the government to fundamentally alter the terms of the US Constitution.

    Of course Scalia’s letter gives a powerful reason why the Supreme Court should not be the ultimate arbiter of legal decisions in this country. The Court is itself a branch of the federal government, and the federal government has shown a steady increase in the desire to concentrate power in itself. Nullification is a rightful remedy that puts checks on all branches of the federal government, including the courts. We need to get more people and more states to embrace this concept…. AND QUICKLY !!

    We also need to Repeal the 17th Amendment ! And get more states to adopt State Sovereignty Resolutions !

  10. Matt Badley says:

    Secession cannot ever be legal in this country. By allowing states the ‘right’ to succeed, we fundamentally undermine our federal government and completely defeat the purpose of a United States of America. The Union represents more than just a collection of nations binding together for mutual self defense and economic cooperation (as is the British Commonwealth), it is a binding of similar culture and political ideology to create a new country.

    Unfortunately, back when the country was new, each state possessed a very independent ideology, and viewed the Federal government much differently than we do today. This is a negative thing. Over and over we see in our history, the Federal government (and the Northern states) constantly bending over backwards to appease Southern politics; almost always centered on the issue of Slavery. Indeed, we see that the issue so commonly waived to justify Succession, state’s rights, was something without meaning to Southern legislatures, who often violated the integrity of Northern states by demanding the application of slavery and slavery enablement in the North. The ideology of separate and sovereign states with the ‘right’ to leave the Union empowered the South to hold the national government hostage, using succession as leverage for political clout, clearly demonstrated by such events as the Nullification Crisis and the Missouri Compromise. The very founding of our country is tainted with such appeasement, as the Founding Fathers deliberately increased the political clout of the South by allowing them to count their slaves as 3/5ths of a vote.

    Secession undermines the national political process and it is intolerable. In 1860, you had people talking about seceding from the Union for losing an ELECTION. (There are even some today who talk about a 2nd civil war if Barrack Obama is elected). These are popularly elected officials who carry the will of the nation, saying that you are allowed to ‘secede’ because our national political process does not cater to your self interest is not only selfish, but destroys the concept of nationhood.

    There is a lot of talk about the Social Contract. This country was founded on that principle, and indeed, we fought a war to separate ourselves from a tyrannical government. Let’s make no qualms, the Founding Fathers were traitors and conducted an illegal war of rebellion. But they’re also hero’s for standing up to injustice. It should be made clear that the Founding Fathers did not rebel because their government would not appease them, they rebelled because their government had abused them. The Southern States of the Confederacy were never abused by the National government, their rights were never infringed. Indeed, if any states rights were infringed, it was the Northern state’s right’s. Did the South care about popular sovereignty? No. They supported border raiders who attacked towns in Kansas and Nebraska, whom tried to use terror to force local residents to accept slavery into an area they did not want it. Where was the Southern cry of “states rights” when Kansas was being turned bloody?

    Rebellion, revolt, and civil disobedience are all illegal. Politically, they are wrong. Morally, they may be right. When Martin Luther King disobeyed Jim Crow laws during his protests, he did so on a MORAL justification, not a legal justification. The South did not rebel on a moral justification. They rebelled to protect slavery, and to enable slavers.

    Secession is not legal. To say it is, invites the same political jockeying of the former South, and to create atmospheres of appeasement.

    Our nation MUST be governed by consensus and compromise. That means that our country is guided by principles we don’t always agree with. But simply because we may disagree with some policy, does not mean we are being oppressed; or that is justifies revolting.

    The secession from, or recreation of government, is something which can only ever be justified by a moral compulsion. Not by realpolitik.

    • David says:

      This does not deserve a reply. Another product of our illustrious indoctrination centers commonly known as schools.

      • Jimmy Sloan says:

        Matt Bradley seems a lot more knowledgeable than the “lawyer” who wrote this junk article.

        The only people who argue in support of the confederacy are crackpots and rednecks.

        • David says:

          Secession does not necessarily equate with a confederacy. North Carolina seceded from the union only after being given a illegal order under the Constitution by Lincoln to raise an army to attack another sovereign nation. Once the Constitution is breached, the contract with the people is broken and the union must either be renegotiated with a new Constitution or maintained through the illegal use of force.

          Your statement is based on historical ignorance and propaganda. I believe in the Constitution of the united States of America. I do not believe in the system of government in Washington that has usurped our founding principles.

        • John says:

          I don’t like being told by Obama that I have
          to buy healthcare insurance which I do not have money
          to buy because I only make 800.00 a month.What am I supposed to do? Pay one of those blood sucking companies
          like Blue Cross Blue shield 400 a month and then
          have a 250 deductable to meet.The government is interfering
          in my business. My healthcare is my business and not
          the governments or anyone elses. That is why I am
          interested in learning about secession.. Also, people in New England
          almost seceeded from the Union because of a
          Nullification crisis although I may be wrong— The south is always thought of
          when it comes to secession.

          • John says:

            Pt 2 I would hate to see the breakup of the
            Union per secession but what I wrote is how many us
            feel--Many of us wonder how we will buy food
            and pay for shelter if we have to pay for
            this health insurance.We just want to survive.

  11. Matt writes: “Secession cannot ever be legal in this country. By allowing states the ‘right’ to succeed, we fundamentally undermine our federal government and completely defeat the purpose of a United States of America.” Funny, I thought the purpose of the United States was to defend and enlarge freedom and liberty. Matt seems to think it’s the preservation of the government of the United States. The goals are incompatible and I hope you can see that.

    Anyway, Jimmy Sloan, as the author of the “junk article,” I anxiously await YOUR article so you can articulate for all of us exactly why you believe secession is not a legitimate option. I mean, if Patrick Henry, John Adams, Thomas Jefferson, and a host of other founders believed in secession as a path to preserve human liberty, that’s good enough authority for me. The Declaration of Independence specifically provides for it — in the very same paragraph that lists the fundamental rights of all individuals, as against their government. That paragraph explains the relationship between the individual and his government. That is forever the key to liberty. And the key to secession is that it is always a course of last resort and never to be taken lighty. As Jefferson wrote, governments shouldn’t be changed or overthrown lightly. His words are clear: “Prudence dictates that Governments long established should not be changed for light and transient causes.” He goes on to explain: “All experience has shown that mankind is more disposed to suffer than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” In other words, individuals have the right to determine when their government poses a serious danger to the liberty that they are endowed with, and if that danger is serious enough, they absolutely have the right to preserve that liberty as opposed to preserving the government.

  12. Jimmy Sloan, you don’t know what you are talking about, which in my mind makes you more ignorant than a redneck. At least rednecks understand the concept of states’ rights and are a heck of a lot more patriotic than people like you. No one is talking about the Confederacy per se. The article is about the right of secession which is spelled out clearly in the Declaration of Independence and which is NOT addressed in the Constitution because it is a right left to the states and to the People.

  13. John, no one wants to see the break-up of the country. We’ve created a world superpower together. We share so much in common. But we’ve deviated horribly from the foundation on which the states agreed to join the Union. The Declaration of Independence explains our foundation. It is the very document that the colonies themselves wrote to explain why they needed to separate (secede) from Great Britain. They wanted a system of government that was radically different from Britain. In Britain, rights come from the government. Government had to sign charters to agree to recognize certain human rights. For much of their history, the Kings would ignore those charters because it wasn’t convenient to do so. They wanted money from the peasants to fund their wars, they wanted land, they locked up troublemakers and subjected them to such mock trials as Star Chambers where they had no rights to their lives or liberty. There was no limit on government in the lives of the people because Britain didn’t consider rights to be “Natural.” The colonies declared that Britain had it wrong. They believed that individual rights come from Nature and from God (“endowed by the Creator”) because in that way, rights precede government and they can never be taken away (“unalienable”). In the Declaration, the colonies announced that People are the true sovereigns and not government. True sovereigns are those who have rights and have the natural power to protect those rights. In the United States, it is the People. People are endowed with the unalienable rights to Life, Liberty, and Property (reworded by the Continental Congress as “pursuit of happiness”). Government bubbles up from people, who temporarily delegate some of their power of self-protection away for common services (“the consent of the governed”). The government is obligated to serve the people, specifically by protecting their rights of life, liberty, and property -- EQUALLY. The Declaration emphasizes that when a government is destructive of that goal, then the people have the right to alter or abolish that government. Again, it is within their natural right of self-protection and self-determination. (But people shouldn’t seek to exercise the right to abolish their government lightly).

    So now we can understand exactly what the basis of our government is here in the United States because it is spelled out clearly in the Declaration… “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 effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.”

    The Declaration established our nation’s ideals which the Constitution then memorialized in a legal charter to define the relationship between the individual and his government and to establish its legal limits.

    The thought of the government telling you what to do with your property is offensive to you, as it should be, and especially because the Constitution doesn’t grant the federal government the power to legislate in this particular area or in this particular manner. If you want to read more about this, check out Justice Scalia’s dissenting opinion in the healthcare decision (where he talks about the permissible limits of the taxing power and the difference between “direct” and “indirect” taxes). Chief Justice John Roberts got it wrong. And it isn’t the first time he got it wrong. Many legal scholars believe he was wrong in Citizens United as well (the case decided a few years ago which said that super pacs can spend money from their general funds to run political ads to influence the outcome of an election). Roberts engaged in judicial activism which means he defined new powers from the bench, without regard to the intend of those who wrote or ratified the Constitution.

    The question to you is “What can we do when the government oversteps its legal bounds?” And it doesn’t matter which of the 3 branches of the government does it. Each branch is constrained by the Constitution. Thomas Jefferson said there are 3 options: (i) take your chances with the Supreme Court; (ii) Nullification; or (iii) Secession. He said the first option is the most untrustworthy and warned that the states should always be suspicious of the judges and the Court. The third option, he said, is the most extreme and should be avoided if possible, but it must always be on the table. In his opinion, though, Nullification is the proper option. In fact, he called it the “Rightful Remedy.” Nullification is the constitutional remedy that puts the power to decide when the federal government has exceeded its legal bounds in the hands of the States and the People -- the parties who had the power to begin with.

    If you believe that Obamacare is unconstitutional -- which I believe it is, and which MOST legal scholars also believe is -- then I urge you to look into Nullification. There is an effort in North Carolina to resurrect this remedy and to re-apply it (and particularly to Obamacare).

    If you have time, please check out my blogsite -- http://forloveofgodandcountry.wordpress.com (which has plenty of articles on Nullification and also has an in-depth article on Obamacare and its horrors) and also please check out the NC Tenth Amendment Center (of which I am the Deputy Coordinator) -- http://northcarolina.tenthamendmentcenter.com/ My latest article is posted there. We also have a facebook site -- North Carolina Tenth Amendment Center.
    [ http://www.facebook.com/northcarolinatenthamendmentcenter?ref=hl ]

  14. Liz says:

    I’m just a normal everyday person, and thank you for writing this so it didn’t go over my head. As you get older you learn history in high school vs real history is completely different which is why Im go back to school to get a degree in American History….. so much that ppl don’t understand. It scares me, that many ppl don’t realize what we are slowly losing.

  15. Roy says:

    Ms. Rufino,
    Thank you for the in-depth editorial. It encouraged me to dig deeper and better educate myself on the topics that you covered. I, as another has stated here, am re-evaluating my opinion of President Lincoln. More study is needed, but I am certainly suspicious of his elevated position in history.
    As someone who has always thought of James Madison as a great American for his service as a leading Founding Father, I have looked to him as a source of clarification on all things Constitutional. Because of that I looked to his writings and opinions on secession and nullification. On nullification he seems to be very clear that it is not an individual states authority to do so.
    In the ninth paragraph of “The Writings of James Madison” , as found on The Library of Congress website( http://memory.loc.gov/cgi-bin/query/r?ammem/mjmtext:@field(DOCID+@lit(jm090163)) ), it reads as follows:
    “But it follows, from no view of the subject, that a nullification of a law of the U. S. can as is now contended, belong rightfully to a single State, as one of the parties to the Constitution; the State not ceasing to avow its adherence to the Constitution. A plainer contradiction in terms, or a more fatal inlet to anarchy, cannot be imagined”
    So, based on his opinion, I have to disagree with you that it is an acceptable course of action.
    On your opinion about secession, Madison seems to be a bit more vague. As a writer of the Federalist papers, he seems to suggest that there would be no reason to secede and that it would cause issues for the Union to do so. (I’m sorry that I can’t find the number of the Federalist Paper that my memory tells me provided that understanding, so if you can provide information to the contrary, I would certainly study it.)
    However, he does in that same paragraph that I provided above, refer to “the States not ceasing to avow its adherence to the Constitution” and at the end of the third paragraph he states the following:
    “But the true question is whether a single state has a constitutional right to annul or suspend the operation of a law of the U. S. within its limits, the State remaining a member of the Union, and admitting the Constitution to be in force”

    In the eighth paragraph of the same writing, he makes the following statement:
    “In this view of the subject there is nothing which excludes a natural right in the States individually, more than in any portion of an individual State, suffering under palpable and insupportable wrongs, from seeking relief by resistance and revolution.”

    These statements clearly imply that he believes that there is a method for a State to separate itself from the Union, and clearly states that it is “…by resistance and revolution.” Although it seems that some of his opinions about the Union may have changed in his later years, he still seems to agree with Jefferson that “revolution” is an acceptable path for a State to take to “throw off” the tyranny of the Central Government. It seems to me that a peaceful secession would be a much preferred path, if grievances are not addressed appropriately, however.
    Thanks again for the information.

  16. Hello Roy,
    Thanks for the comment and for the references to James Madison. Madison is a curious creature. He attended the Constitutional Convention as a strong nationalist. He wanted a strong central government, at the expense of the sovereignty of the states. He wanted a group of weak states controlled by a national government. This was the Virginia Plan. Although it was presented by Edmund Randolph, it was most likely drafted by Madison (in whole or in part). The Plan gave great powers to the national government, including a “negative” (ie, veto) on any act of the state legislatures that the government felt conflicted with its policies. [Jefferson, on the other hand, said the rightful “negative” belongs to the states who should be able to veto any act of the federal government that exceeds power granted to it. This is Nullification]. Many elements of the Virginia Plan were rejected and replaced with a federalist approach (power remains with the states, but on limited issues, the government is supreme). In other words, the great majority of delegates rejected Madison’s “nationalist” approach. And gradually, he came to support the federalist approach and the Constitution as adopted at the Convention. Now, the real challenge was to sell that Constitution to the states. At that point, it was just a proposal. But the states were not happy with it. It was still dangerous to the powers that the states wished to protect and so it was clear they were not going to ratify it (9 states were needed, as per Article VII). That’s when Alexander Hamilton, James Madison, and John Jay got together to answer the criticisms of the Constitution (the anti-Federalist Papers) by writing a series of essays defining the Constitution, explaining the scope of the powers delegated, and giving assurances that the states would not be compromised (the Federalist Papers; 85 essays). Here Madison was presented with a dilemma. He was on board with the Constitution (of limited powers) and wanted his essays to be taken seriously and credibly, but if it were found out what a strong nationalist he was at the Convention, he would lose that credibility and he might jeopardize the ratification of the Constitution. And so he sealed the notes he took at the Constitutional Convention (“Madison’s Notes on the Debates at the Constitutional Convention”) until 1840. They were originally published in 1840 as “The Papers of James Madison” or something like that.

    In 1835, Madison wrote his “Notes on Nullification.” It was in response to the position South Carolina took against the “Tariff of Abominations” (protective tariff) passed by the Congress. South Carolina’s John Calhoun wrote an expose in 1828 -- “South Carolina Exposition & Protest” -- in which he explained that the tariff discriminately harmed the southern states (and in particular, SC) as opposed to the northern states, that the government was created to serve all the states equally, and consequently, the tariff should be nullified. In his expose, he resurrected Jefferson and Madison’s doctrines of nullification /interposition and urged South Carolina to nullify the tariff. A careful reading of Madison’s “Notes on Nullification” will show that he certainly supports Nullification (in every sense of the doctrine) but he didn’t support South Carolina’s use of it in the particular instance. In his “Notes on Nullification,” he wrote: “That the doctrine of nullification may be clearly understood it must be taken as laid down in the Report of a special committee of the House of Representatives of S. C. in 1828. In that document it is asserted, that a single State has a constitutional right to arrest the execution of a law of the U. S. within its limits; that the arrest is to be presumed right and valid, and is to remain in force unless ¾ of the States, in a Convention, shall otherwise decide.”

    In other words, Madison was not objecting to the principles of nullification in general, but the specific application created by South Carolina. Did Madison reject nullification outright? No. He did agree with our writer that it was outside of the constitutional structure itself. But he continued to hold that it was a legitimate act when all remedies prescribed by the Constitution fail to restrain usurped power i.e. through the courts, legislative remedies or at the ballot box. He went on to write:

    “She (Virginia) asserted moreover & offered her proofs that the States had a right in such cases, to interpose, first in their constituent character to which the govt of the U. S. was responsible, and otherwise as specially provided by the Constitution; and further, that the States, in their capacity of parties to and creators of the Constitution, had an ulterior right to interpose, notwithstanding any decision of a constituted authority; which, however it might be the last resort under the forms of the Constitution in cases falling within the scope of its functions, could not preclude an interposition of the States as the parties which made the Constitution and, as such, possessed an authority paramount to it.”

    In this view of the subject there is nothing which excludes a natural right in the States individually, more than in any portion of an individual State, suffering under palpable and insupportable wrongs, from seeking relief by resistance and revolution.

    So you see; Madison never actually turned his back on the fundamental principle of nullification -- resistance. In fact, he even outlined the process:

    “The plain answer is, that the remedy is the same under the government of the United States as under all other Govts. established & organized on free principles. The first remedy is in the checks provided among the constituted authorities; that failing the next is in the influence of the Ballot-boxes & Hustings; that again failing, the appeal lies to the power that made the Constitution, and can explain, amend, or remake it. Should this resort also fail, and the power usurped be sustained in its oppressive exercise on a minority by a majority, the final course to be pursued by the minority, must be a subject of calculation, in which the degree of oppression, the means of resistance, the consequences of its failure, and consequences of its success must be the elements.”

    The principles of nullification logically flow out of the delegation of powers that created the federal government in the first place. Nullification simply asserts that power ultimately remains with the people of the several states, and that they have a right to take action when the general government they created acts outside of its delegated powers. Nullification does not stand outside of the constitutional system; it is fundamental to it. To deny nullification is to deny the sovereignty of the people of the states, which is to deny the very foundation of the American system. If one accepts the construct of the Union as Madison, Jefferson and most importantly the ratifying conventions understood it, nullification logically follows.

    Hope this helps.

    • David says:

      The change in Madison’s views concerning the structure and power of the Federal government were due to the return of Thomas Jefferson from his assignment to France. I always wondered if Jefferson was sent to France to reduce his input on the formation of the new government. It would have been interesting to see what would have occurred if he was present at the Constitutional Convention. He may have pointed out that the proceedings were illegal under the existing Articles of Confederation and Perpetual Union. Who knows, he may have convinced the assembly to maintain the existing government as it was and amended the existing government instead.

  17. halftruthlies says:

    Great article; Loved reading all of your replies. I will share this with all my friends. :)

  18. Roy says:

    Hello Diane,

    First, please do not take this the wrong way. I don’t mean this to sound accusative, but rather just to point out why I have the understanding that I do from the same Madison writings that you quote. It looks as if you have done some picking and choosing as to the sections of the writing that you have quoted. In the section that you first quoted where he writes about understanding the argument and getting a clear view of it by looking at the 1928 Report out of S.C., he is simply stating that you have see how it is being used in that document. The conclusion that “A careful reading of Madison’s “Notes on Nullification” will show that he certainly supports Nullification (in every sense of the doctrine) but he didn’t support South Carolina’s use of it in the particular instance.” , doesn’t fit when you do indeed do a careful reading of the entire document. In the section that I have attached below, he is clearly stating that if a single State can nullify a law, that it simply becomes unworkable. He states that it simply could not be clearer that the laws must be the same in all states. He also states near the bottom that the words “null & void” were intentionally removed from the VA Resolution because it was misleading, and that it had been wrongfully reused to characteris him as a “nullifiers”.

    “The unanimous erasure of nullifying expressions was a protest by the H. of Delegates, in the most emphatic form against it.”

    I can agree that nullification does not stand outside the constitution, but it can not be used by any individual State, but rather the majority of states must use the processes established in the Constitution to nullify an unjust law. If all of the steps that Madison spelled out and that you quoted fail, then careful thought must be given to the only option left, i.e. revolt and revolution.

    “Now apart from the palpable insufficiency of an interposition by a single State to effect the declared object of the interposition namely, to maintain authorities & rights which must be the same in all the States, it is not true that there would be no tribunal above the authority of a state as a single party; the aggregate authority of the parties being a tribunal above it to decide in the last resort.”

    Madison certainly thought that nullification and interposition had different meanings and went to great lengths to to not use them interchangably. Interposition means to get in between and try to prevent. The process he seen for that was to try and convince a majority of the other states to agree with them and thus change the law.

    “…the General Assembly doth solemnly appeal to the like dispositions in the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid are unconstitutional,…”

    In both the KY and VA Resolutions of 1798 and 1799, that did not happen, as no other states supported them, so no other action was taken. Yet Calhoun, by using words that Madison had specifically removed, implied that even Madison would support his position.

    Denying nullification does not deny the soverignty of the people of the states, because there are other courses spelled out. Denying nullification by an individual state does however maintain a consistant federal law across all states, which Madison felt was necesary to maintain a functional Union.
    If you want to state that your definition of “nullification” is a majority of the states agreeing that a law is unconstitutional and repealing it through the established channels, then I would agree that it is a fundimental right of the states and a logical step.

    Thanks for the debate!

    “If it be asked why a claim by a single party to the constitutional compact, to arrest a law, deemed by it a breach of the compact, was not expressly guarded agst. the simple answer is sufficient that a pretension so novel, so anomalous & so anarchical, was not & could not be anticipated.

    In the third place, the nullifying claim for a single State is probably irreconcilable with the effect contemplated by the interposition claimed by the Resolution for the parties to the Constitution namely that of “maintaining within the respective limits of the States the authorities rights & liberties appertaining to them.” Nothing can be more clear than that these auths. &c., &c., of the States, in other words, the authority & laws of the U. S. must be the same in all; or that this cannot continue to be the case, if there be a right in each to annul or suspend within itself the operation of the laws & authority of the whole. There cannot be different laws in different states on subjects within the compact without subverting its fundamental principles, and rendering it as abortive in practice as it would be incongruous in theory. A concurrence & co-operation of the States in favor of each, would have the effect of preserving the necessary uniformity in all, which the Constitution so carefully & so specifically provided for in cases where the rule might be in most danger of being violated. Thus the citizens of every State are to enjoy reciprocally the privileges of citizens in every other State. Direct taxes are to be apportioned on all, according to a fixed rule. Indirect taxes are to be the same in all the States. The duties on imports are to be uniform: No preference is to be given to the ports of one State over those of another. Can it be believed, that with these provisions of the Constn. illustrating its vital principles fully in view of the Legislature of Virginia, that its members could in the Resolution quoted, intend to countenance a right in a single State to distinguish itself from its co-States, by avoiding the burdens, or restrictions borne by them; or indirectly giving the law to them.

    These startling consequences from the nullifying doctrine have driven its partizans to the extravagant presumption that no State would ever be so unreasonable, unjust & impolitic as to avail itself of its right in any case not so palpably just and fair as to ensure a concurrence of the others, or at least the requisite proportion of them.

    Omitting the obvious remark that in such a case the law would never have been passed or immediately repealed; and the surprize that such a defence of the nullifying right should come from S. C. in the teeth & at the time of her own example, the presumption of such a forbearance in each of the States, or such a pliability in all, among 20 or 30 independent sovereignties, must be regarded as a mockery by those who reflect for a moment on the human character, or consult the lessons of experience, not the experience of other countries & times, but that among ourselves; and not only under the former defective Confederation, but since the improved system took place of it. Examples of differences, persevering differences among the States on the constitutionality of Federal acts, will readily occur to every one; and which would, e’er this, have defaced and demolished the Union, had the nullifying claim of S. Carolina been indiscriminately exercisable. In some of the States, the carriagetax would have been collected, in others unpaid. In some, the tariff on imports would be collected; in others, openly resisted. In some, lighthouses wd. be established; in others denounced. In some States there might be war with a foreign power; in others, peace and commerce. Finally, the appellate authority of the Supreme Court of the U. S. would give effect to the Federal laws in some States, whilst in others they would be rendered nullities by the State Judiciaries. In a word, the nullifying claims if reduced to practice, instead of being the conservative principle of the Constitution, would necessarily, and it may be said obviously, be a deadly poison.

    Thus, from the 3d. resoln. itself, whether regard be had to the employment of the term States in the plural number, the argumentative use of it, or to the object namely the “maintaining the authority & rights of each, which must be the same in all as in each, it is manifest that the adequate interposition to which it relates, must be not a single, but a concurrent interposition.

    If we pass from the 3d. to the 7th. Resolution, which, tho’ it repeats and re-enforces the 3d. and which is always skipped over by the nullifying commentators, the fallacy of their claim will at once be seen. The resolution is in the following words. [“That the good people of the common- wealth having ever felt and continuing to feel the most sincere affection to their brethren of the other states, the truest anxiety for establishing and perpetuating the union of all, and the most scrupulous fidelity to that Constitution which is the pledge of mutual friendship and the instrument of mutual happiness, the General Assembly doth solemnly appeal to the like dispositions in the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid are unconstitutional, and that the necessary and proper measures will be taken by each for co-operating with this state in maintaining unimpaired the authorities, rights, and liberties reserved in the states respectively or to the people.”1] Here it distinctly appears, as in the 3d. reoln. that the course contemplated by the Legislature, “for maintaining the authorities, rights, & liberties reserved to the States respectively,” was not a solitary or separate interposition, but a co-operation in the means necessary & proper for the purpose.

    If a further elucidation of the view of the Legislature could be needed, it happens to be found in its recorded proceedings. In the 7th. Resolution as originally proposed, the term ” unconstitutional,” was followed by null void, &c. These added words being considered by some as giving pretext for some disorganizing misconstruction, were unanimously stricken out, or rather withdrawn by the mover of the Resolutions.

    An attempt has been made, by ascribing to the words stricken out, a nullifying signification, to fix on the reputed draftsman of the Resolution the character of a nullifier. Could this have been effected, it would only have vindicated the Legislature the more effectually from the imputation of favoring the doctrine of S. Carolina. The unanimous erasure of nullifying expressions was a protest by the H. of Delegates, in the most emphatic form against it”

  19. Wally says:

    The civil war was not over slavery, but the reason that South Carolina seceded from the Union was over the taxation efforts over the agrarian economy.
    The emancipation proclamation only freed the slaves in the southern states initially, then years later freed the northern slaves. Gen. Grant owned slaves during his reign.
    In 1861 the number of slaves per capita Charleston, SC was #1 and Manhattan, New York was #2. Slavery was used as a battle cry to recruit more troops.
    South Carolina seceded in 1860, Lincoln’s proclamation was 1863. Funny did anyone read the proclamation or just assumed they were taught the truth in school.
    I am not a fan of slavery or secession; but I do feel we are cattle to the government, only allowed to graze how they dictate.

  20. Timotheus says:

    If people studied the concept of secession in the world, they might discover that Belgium seceded from the Netherlands in 1835. There was no bloodshed or fraudulent “civil” war. It was rationally determined that Belgium could govern itself more efficaciously as a separate, solvent entity. In 1915, Norway seceded from Sweden. There was no military conflict, and these countries did not cease to exist. Norway has gone on to be a fountainhead of Constitutional Republican conviction, while Sweden has degenerated into a Marxist-Zionist state.

    Anyone who actually believes that the reason for this imbecilic, “uncivil” war was to free the African slaves must spend a large amount of time standing around and drooling. When Lincoln introduced Marxist income taxation in 1862, he turned everyone into wage slaves. The de facto slaves of both the North and South became the wage slaves of the Northern plutocracy, who knew it was much more economically viable to give these factory slaves subsistence wages and let them sleep in the gutter.

    Lincoln was nothing but a coprophagic demagogue who defecated all over the Constitution and wiped his crypto-Zionist fundament with the Bill of Rights. Lincoln was tight friends with that tub of Zionist lard, Karl Marx. Lincoln, with his evisceration of the Constitution, turned this country into the first Marxist-Zionist, Communist state. It is incredible that people don’t know that Lincoln’s cabinet and advisors were a putrescent cabal of Zionist agents.

    Zionists were also planted in the South, and Jefferson Davis’ chief advisor was a prominent Zionist agent named Judah Benjamin. In truth, Davis was bought off and was a traitor to the South. The South could have easily ended this fraudulent “war” in the first three months by taking Washington and then destroying the factories and transportation centers of the Northeast as Stonewall Jackson was intent on doing. The North had no army that could have stopped the South at this time. However, this Rothschild-Zionist plant, Benjamin Judah, would not allow Jackson to rapidly finish off the North.

    The only real truth about this moron “war” was that both Lincoln and Davis were traitors to the Constitutional Republic and should have been executed for high treason.

  21. Thomas Watts says:

    Lincoln said in his first inaugural address that the war WAS NOT and COULD NOT be about slavery, it was about TAXES.

    • David says:

      The Congressional Record also stated that the purpose of the war was not about slavery. Until the record was rewritten after the war was over.

  22. rui says:

    “The States have their status in the Union, and they have no other legal status. If they break from us, they can only do so against law and by revolution. The Union, and not themselves separately, procured their independence and their liberty. By conquest or purchase the Union gave each of them whatever of independence and liberty it has. The Union is older than any of the States, and, in fact, it created them as States.”

    that’s what i thought…

    • David says:

      This has to be the most insipid comment that I have ever had to read on this site. Read the Constitution, Articles of Confederation and Perpetual Union and the Treaties of Paris.

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