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    A Concurring Opinion For Secession, Parts 3,4,5

    Published: Thursday, February 11, 2010

    Anti-Secessionist Argument #2: The US Constitution Is Not a Federal Compact of States/Bodies-Politic, but Is an Independent Government Formed by One People/Body-Politic, Without Regard to State Powers.

    This position is in actuality the main crux of the unionists. The reason that unionists must rely on this argument is because if in fact the constitution is a federal compact assented to by the states in their individual and independent capacity as a sovereign state, then political maxims held true in American jurisprudence prove that those same states may secede from the union in like manner that they entered: through the UNILATERAL action of that body-politic.

    Definition of “State”

    Before moving forward on the substance of this topic, we must understand what a “State” is. “[S]tates are bodies politic, societies of men united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength. Such a society has her affairs and her interests; she deliberates and takes resolutions in common; thus becoming a moral person, who possesses an understanding and a will peculiar to herself, and is susceptible of obligations and rights.” Vattel, 67; See Also, 2 Burlamaqui, Part 1, ch. 4, sec. 9. The word “state” itself has a legally and politically operative meaning, including the duties and rights to protect, preserve and perfect itself perpetually.

    Many people confuse or misapply “states” to mean “state governments” (normally in a condescending manner, like, “those evil state governments!”) This is simply not true. A state is a moral person (a natural law concept) composed of a complete society with rights inherent in that political composition, such that the state acts as one person under the authority of that society of people; possessing rights and obligations. So, when the question is asked, was the US Constitution created by States or “the people,” that is an incorrectly and uneducated form of a question. The question should be this: was the US Constitution formed by the people of the several states as individual bodies-politic, or was it formed by the people as one body-politic? To answer this question, the definitions and applications must be understood properly.

    Another important matter that has to be understood is the Equal Footing Doctrine. I have heard some people attempt to argue that even if the original thirteen states were sovereign, all of the new states that joined the union were never sovereign and should not be treated as such under the constitution. They attempt to undermine the sovereignty of states today, as if state sovereignty has sort of expired over time. (This is fitting since most federal politicians attempt outdate the true meanings of the constitution itself. Is it any wonder that the people are confused on this as well?) This theory is pure nonsense. It contradicts the Equal-Footing Doctrine, which says, “a state admitted to the Union after 1789 enters with the same rights, sovereignty, and jurisdiction within its borders as did the original 13 states.” Bryan A. Garner, ed., Black’s Law Dictionary, Abridged Seventh Edition, (St. Paul, MN: West Group, 2000), 441. This has been repeatedly confirmed by the US Supreme Court:

    “This Union was and is a union of States, equal in power, dignity and authority, each competent to exert that residuum of sovereignty not delegated to the United States by the Constitution itself…[T]here is to be found no sanction for the contention that any state may be deprived of any of the power constitutionally possessed by other states, as states.” Coyle v. Smith, 221 U.S. 559 (1911) (emphasis added).

    While you may want your state to be dependent on the federal government so you can help destroy the states and grant more power to the almighty Fed, this does not mean that the other states do, nor does it mean that your state is not sovereign in its powers.

    The Importance of the Issue

    Let me state the conclusion first: the US Constitution was formed NOT by one body-politic of one American nation, but rather, the US Constitution was formed by individual, several and separate bodies-politic of states through their ASSENT in the form of a FEDERAL COMPACT. The conclusions drawn from this fact reach into the very heart of issue of secession. But you need not take my word for the issue stated. Consider one of the United States’ most well-known and respected statesmen–one who advocated against the right to secede: Daniel Webster.

    During the early 1800s, this very issue of secession was being highly debated, and Daniel Webster was the main spokesman for the unionist’s position. In his public discourse against John Calhoun regarding the nature of the union, secession and nullification, Webster held strong and firm on the conclusion that the states’ do not have a right to secede. In response to South Carolina’s resolution in 1817, “That, as in all other cases of Compact among Sovereign parties, each has an equal right to judge for itself, as well of the infraction as of the mode of redress,” Webster puts the anti-secessionists/nullification position this way:

    “this conclusion [in favor of nullification and secession] requires for its support…accession and of Compact between Sovereign powers; and, without such premises, it is altogether unmeaning.” Alexander Stephens, A Constitutional View of the War Between the States, 307.

    Put inversely, “this conclusion requires for its support accession and of Compact between Sovereign powers; and with such premises, it is altogether meaning.”

    To Webster, proving secession would require turning “the [constitution] into a mere compact between sovereign states.” Daniel Webster, American History Leaflets, Colonial and Constitutional, Ed. Albert Bushnell Hart and Edward Channing, No. 30, Constitutional Doctrines of Webster, Hayne and Calhoun, (November, 1896), 39. To be certain, Webster’s unionist’s views were based upon the notion that the US Constitution was NOT a federal compact assented to by sovereign states, but rather was an independent, sovereign, self-sustaining government created by one body-politic to the exclusion of the states and their agents (state governments).

    Indeed, Webster was viewed as the “‘Great Expounder of the Constitution,’ with the Consolidationists of that day.” Stephens, 337. As will be seen, Webster’s argument and his credentials on this matter are significant, because several years later after the Webster-Calhoun debates, Webster completely changed his stance on state sovereignty and the right to secede, as I will detail later.

    In truth, Joseph Story was correct when he stated, “[t]hese are momentous questions, and go to the very foundation of every government founded on the voluntary choice of the people; and they should be seriously investigated, before we admit the conclusions, which may be drawn from one aspect of them.” Joseph Story, Nature of the Constitution – Whether A Compact, Book 3, Chapter 3, sec. 332. These questions so momentous because were it accepted that the US Constitution was in fact a federal compact created by the assent of sovereign states, then the resulting conclusion would confirm that those states have the right to secede from the compact thus formed, as expressed by the expounders of the Law of Nations.

    Assent of the States

    So, did the states (individual and several bodies-politic) assent to the US Constitution as a federal compact, or did the people as one mass body-politic create an independent and perpetual government at the expense or exclusion of state sovereignty, power and authority, removing from their power the right to secede from the union? In truth, every aspect of the ratification of the US Constitution was federal in nature, meaning, formed by existing independent and sovereign states (and even all of the elections regarding the federal government today are conducted on state levels, not that a mode of election determines sovereignty–it was just an observation). The people of the states preferred the federal form of government because they knew the natural law maxim that every state should “avoid…whatever might cause its destruction,” for this most conforms to the principles of freedom and self-government. Emer De Vattel, The Law of Nations, (Indianapolis, IN, Liberty Fund, 2008), 88.

    Most certainly forming one nation under one body-politic would destroy the states and would have created a worse situation for the states than they were facing under Great Britain. At least with Great Britain, their tyrant was 3,000 miles across an ocean. Forming a consolidated sovereignty in your home town was pure madness. It was largely for this reason that many people of the states proposed an even more divested system of delegated power for external purposes. They advocated that the union be composed of not one union of states, but of several unions of states, and this was during a time when only thirteen states existed, being comprised of only a few millions of people. (Now we have 50 states and hundreds of millions with hardly any commonality to speak of! When will your reason begin to apply the maxims of freedom to our current situation?)

    “[W]e must of necessity resort to separate confederacies of distinct portions of the whole.” Alexander Hamilton, FP 1.

    “[It is] suggested that three or four confederacies would be better than one.” John Jay, FP 2.

    “[The States should be] divided into several confederacies… The ideas of men who speculate upon the dismemberment of the empire seem generally turned toward three confederacies.” Alexander Hamilton, FP 13.

    “[There are] advocates for three or four confederacies.” John Jay, FP 5.

    Please, do not make the mistake of equating “union” to “freedom.” This is a serious fallacy and has been the ploy of tyrants who would seek to accrue power to themselves by consolidating sovereignty into what always becomes untouchable and unreachable. Governments and unions are only instituted to protect freedom. Where those governments and unions no longer serve their purpose, the people who possessed the power to join that union have the power to disjoin.

    A Concurring Opinion For Secession, Part 4

    (Continued) Anti-Secessionist Argument #2: The US Constitution Is Not a Federal Compact of States/Bodies-Politic, but Is an Independent Government Formed by One People/Body-Politic, Without Regard to State Powers.

    Perhaps one of the best sources to determine whether the states voluntarily assented to a federal compact or whether the whole people created a perpetual federal government at the exclusion of the state’s right to secede is the states’ ratification documents themselves. “[T]he publication of the Proceedings and Debates of the states must, at least, be useful [to determine] what the states really intended to grant to the general government.” Elliot, Elliot’s Debates, Preface to the First Edition, vol. 1, iv. Let us see what just a few of the states declared to the world they were doing:

    States’ Ratification Declarations

    Delaware:

    “We, the Deputies of the People of Delaware State…have approved, assented to, ratified, and confirmed, and by these presents do…fully, freely, and entirely approve of, assent to, ratify and confirm, the said Constitution.” Stephens, 207-208 (emphasis added). Here it is clear: the state of Delaware assented to the Constitution.

    Pennsylvania:

    “In the Name of the People of Pennsylvania. Be it known unto all men, that we, the Delegates of the people of the Commonwealth of Pennsylvania…have assented to and ratified…the foregoing Constitution for the United States of America.” Stephens, 209 (emphasis added. Note: the constitution was ratified for the states.)

    Connecticut:

    “In the name of the People of the State of Connecticut. We, the Delegates of the people of said State…pursuant to an Act of the Legislature…have assented to, and ratified, and by these presents do assent to, ratify and adopt the Constitution…FOR the United States of America.” Stephens, 227-228 (emphasis added).

    Roger Sherman of Connecticut–one of the five in the committee in Congress that drafted the Declaration of Independence and the only person to sign all four great state papers of the U.S.: the Continental Association, the Declaration of Independence, the Articles of Confederation and the Constitution–understood the ratification of the constitution to be a federal compact, assented to by sovereign states, such that the state legislatures retained all powers to resist federal tyranny through nullification and secession. Sherman says:

    “But, says the honorable objector, if Congress levies money, they must legislate. I admit it. Two legislative powers, says he, cannot legislate on the same subject in the same place. I (Roger Williams) ask, why can they not? It is not enough to say they cannot. I wish for some reason [to] grant that both [State and Federal] cannot legislate upon the same object at the same time, and carry into effect laws which are contrary to each other…It is vain to say they cannot exist, whey actually have done it…I am for coercion by law—that coercion which acts only upon delinquent individuals. This Constitution does not attempt to coerce Sovereign bodies, States, in their political capacity.” Stephens, 229-231.

    If states may not nullify, resist or in any way contradict the federal government except as through the US S CT or alternatively through three-fourths of the states, then Sherman (who undoubtedly was very familiar with all of the U.S. freedom documents) advocated a very erroneous and even fraudulent proposition to his people, that the Constitution did not allow the federal government to coerce sovereign bodies of States in their political capacity. And if he was so ignorant, how much more incredible would be any of the founders’ position on the matter, such that there would be no certainty whatsoever even to what the definition of the word “is” is. But if the states can nullify, then they can do so based upon the limitations placed upon the federal government and upon the retained sovereignty of the states. Upon that same basis, secession is with their right.

    Massachusetts:

    “Commonwealth of Massachusetts. The Convention having impartially discussed, and fully considered, the Constitution for the United States of America…[and] of entering into an explicit and solemn compact with each other, by assenting to and ratifying a new Constitution, in order to form a more perfect union…do, in the name and in behalf of the people of the Commonwealth of Massachusetts, assent to and ratify the said Constitution for the United States of America.” Stephens, 233 (emphasis added).

    Is there any mistake here? Massachusetts expressly declared to the world that they were forming a federal compact by their voluntary assent FOR the United States.

    Virginia:
    Perhaps you need more confirmation. If so, you would like to know that the people of Virginia expressly stated in their ratification document that:

    “[T]he powers granted under the Constitution, being derived from the people of the United States, may be resumed by them, whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them, and at their will; that, therefore, no right, of any denomination, can be cancelled, abridged, restrained, or modified by the Congress, by the Senate or House of Representatives, acting in any capacity, by the President, or any department or officer of the United States.” Stephens, 254-255 (emphasis added).

    With that understanding, Virginia did “assent to and ratify the Constitution.” Stephens, 255. Virginia simply expressed the political understanding of what the US Constitution was: a federal compact assented to by sovereign states, which had the power to recall all powers granted to the federal government under that compact, when those people deemed their union to be destructive to the ends of government. Notice as well that they could recall those powers “at their will,” meaning at any time, with or without any other state’s consent.

    To deny this right, authority and power of a state to unmake the constitution that it alone formed for its body-politic is one of the most egregious and unconscionable acts that could be done against a state. In truth, “[s]overeignty is, doubtless, the most precious [right of a state].” Vattel, 289.

    I could expound the remaining states’ ratification documents, but the truth has already been revealed and would continue to be so by referring to the other ratification documents: the constitution was a federal compact formed by the assent of sovereign states. What is obvious as well in all of the states’ ratification documents is that they were acting as a State on behalf of the State. They were not acting as one body-politic with the other states. The US Constitution confirms this by requiring only 9 of the 13 states to ratify.

    If “one nation” existed, why did Congress allow four of the states to abandon the union at that time? After all, the Articles of Confederation expressly stated it was “perpetual,” yet four states were allowed to secede by not rejoining the union? This contradicts the assertion (made by Lincoln and other unionists) that the states were never sovereign or independent. This is pure nonsense. Indeed, the remaining four states could act as they desired independently of all other states, because each state acted for itself as a sovereign state.

    A Concurring Opinion For Secession, Part 5

    (Continued) Anti-Secessionist Argument #2: The US Constitution Is Not a Federal Compact of States/Bodies-Politic, but Is an Independent Government Formed by One People/Body-Politic, Without Regard to State Powers.

    Federalist Papers

    This matter of state ratification was in fact a concern, such that, the states wanted to be certain that their ratification was known to be an assent to a federal compact and would not be misconstrued any other way, since as Hamilton admitted, “the States [did not] prefer a national Constitution.” FP 16. Madison addressed the following regarding the actual formation of the constitution:

    “[T]he Constitution is to be founded on the…assent and ratification…as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will [be a] FEDERAL act… Each State, in ratifying the constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act.” James Madison, FP 39 (emphasis added).

    Later in his discussion, James Madison admits that the US Constitution is a federal compact and recognized that the states would likely dissolve the compact where the US S CT did not interpret the constitution correctly:

    “The decision [by the tribunal] is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the COMPACT.” James Madison, FP 39 (emphasis added).

    Proving the point even further regarding the nature and character of the union, James Madison proclaims that the US Constitution was based upon the same principles of the federal compact in the Articles of Confederation:

    “The truth is, that the great principles of the Constitution proposed by the convention may be considered less as absolutely new, than as the expansion of principles which are found in the Articles of Confederation.” James Madison, FP 40 (emphasis added).

    “In a confederacy founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchial innovations.” James Madison, FP 43 (emphasis added).

    Observe: the US Constitution expands the principles of the Articles of Confederation–NOT contradicts them! How can the union go from a federal compact of sovereign states (which is readily admitted to exist under the Articles of Confederation) to a one-body-politic-national government (whereby the states lose all practical sovereignty, confirmed by their success in declaring and winning independence) and still maintain the principles of the Articles of Confederation? What nonsense and absurdity. And this statement was coming from a man biased towards consolidation. If Madison was baiting-and-switching the states, we have a serious problem here (talk about detrimental reliance!) and any constitutional constructions should be held in the light most favorable to those states that were assured they were assenting to a federal compact. The federal government most certainly should not be given the advantage of trickery, subterfuge and fraud.

    The fact is, the men attending the constitutional convention acknowledged that the US Constitution would preserve a confederacy form of government, whereby the states retained sovereignty of Nations, just as they did under the Articles of Confederation: “Congress, intent upon the present and future security of these United States, has never ceased to consider a confederacy as the great principle of union.” Jonathon Elliot, Elliot’s Debates, vol. 1 (Philadelphia, PA, Lippincott Co., 1891), 68 (emphasis added). For this reason, Madison was correct to state that the principles forming the US Constitution were the same as for the Articles of Confederation: a federal compact formed by the assent of sovereign states.

    US Constitution: A Confederate Republic Maintained

    These states knew exactly what they were assenting to when they ratified the constitution: a Confederate Republic. This was readily admitted and known throughout the states and was admitted by even those nationalists, such as Madison and Hamilton. Likewise, founding father James Wilson of Pennsylvania (who was a delegate at the constitutional convention and advocate for ratification in the state convention) says this in the Pennsylvania state convention about the nature of the union under the proposed constitution:

    “[I]t was well known, that, however the citizens of the United States might with pleasure submit to the legitimate restraints of a Republican Constitution, they would reject with indignation the fetters of despotism. What, then, was to be done? The idea of a Confederate Republic presented itself.” Stephens, 211.

    Quoting well-known philosopher, Charles Montesquieu, Wilson describes that the US Constitution would “have ‘all the internal advantages of a Republic, together with the external force of a monarchical Government.’ Its description is a ‘Convention, by which several states agree to become members of a larger one.” Stephens, 211-212 (emphasis added). The US Constitution was clearly understood to be a Confederate Republic, just as the Articles of Confederation was–a federal compact formed by the assent of sovereign states as several members of a union. Wilson did not describe the union as the whole people forming one nation under one government.

    Likewise, Madison referred to the union under the US Constitution as “members of the Confederacy” throughout the federalist papers and Hamilton even held that “the confederacy (under the US Constitution) may be dissolved, and the confederates (that is, the states) preserve their sovereignty…[The proposed Constitution] would still be an association of states, or a confederacy…[with the states possessing] certain exclusive and very important portions of sovereign power.” Alexander Hamilton, FP 9 (emphasis), citing Charles Montesquieu, The Spirit of Laws, vol. 1, book ix., chap. i (1752) (parenthesis added).
    A federal compact was not and is not without significant meaning and understanding. Vattel, perhaps the premier authority in this regard, characterizes a federal compact this way:

    “[S]everal sovereign and independent states may unite themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect state. They will constitute a federal republic: their joint deliberations will not impair the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent, when he is obliged to fulfill engagements which he has voluntarily contracted.” Vattel, 84.

    Daniel Webster’s Change of Position

    As I noted above, in Webster’s earlier political career, he was one of the most (if not the most) articulate and well-known spokesman for the shrinking of states’ rights, especially their right to nullify and secede. However, after years of intense discussion on the subject, Webster actually dropped out of the debate; and several years later, we see that Webster changed his tune completely.

    In The Bank of Augusta vs. Earle (1839), Webster argued before the US Supreme Court regarding the nature of the general government and the state governments in their relation to each other. Here are Webster’s arguments in part:

    “It is argued, that though this law of comity exists as between Nations, it does not exist between the States of this Union…In respect to this law of comity, it is said, States are not Nations; they have National Sovereignty; a sort of residuum of Sovereignty is all that remains to them. The National Sovereignty, it is said, is conferred upon this [Federal] Government, and part of the municipal Sovereignty. The rest of the municipal Sovereignty belongs to the States…

    I cannot follow in this train of his argument. I can make no diagram, such as this, of the partition of National character between the State and General Governments. I cannot map it out, and say, so far is National, and so far is municipal; and here is the exact line where the one begins and the other ends…

    “There is no such thing as arranging these Governments of course by the laws of gravitation, so that they will be sure to go on forever without impinging…I am not prepared to say that the States have no National Sovereignty.

    “The term ‘Sovereignty’ does not occur in the Constitution at all. The Constitution treats States as States, and the United States as the United States; and, by a careful examination, declares all the powers that are granted to the United States, and all the rest are reserved to the StatesThe States of this Union, are subject to all the voluntary and customary laws of Nations.” Stephens, 390-391 (emphasis added by author).

    Daniel Webster could not have said this on public record before the US Supreme Court had he not been enlightened as to the true character and nature of the union. And in fact, Webster’s arguments were accepted by the United States Supreme Court, as they found that the “states of the Union are sovereign states.” Bank of Augusta vs. Earle, 38 U. S. 519, 520 (1839). In Webster’s argument, he even used the Law of Nations’ maxims expounded by Emer De Vattel in his most highly-regarded Law of Nations. From this same authoritative source on the subject, we see the crucial importance of sovereignty in a federal constitutional republic:

    “Of all rights that can belong to a nation, sovereignty is, doubtless, the most precious, and that which other nations ought the most scrupulously to respect, if they would not do her an injury.” Vattel, 289.

    For this reason we can emphatically say, Webster’s statements and the US S CT’s ruling regarding the National Sovereignty of the States in this union are more telling than many would care to admit, because it certainly carries with it the rights of the States to secede from this federal union. Eventually, this was the very conclusion that Daniel Webster came to in 1851, when he declared:

    “How absurd it is to suppose that when different parties into a Compact for certain purposes, either can disregard any one provision, and expect, nevertheless, the other to observe the rest! I intend, for one, to regard, and maintain, and carry out, to the fullest extent, the Constitution of the United States, which I have sworn to support in all its parts and all its provisions…A bargain cannot be broken on side and still bind the other side…I am as ready to fight and to fall for the Constitutional rights of Virginia, as I am for those of Massachusetts.” Stephens, 404

    Effect of Answer

    So again, what is the effect of the union being a federal compact assented to by sovereign states? The effect is what the unionists deny: that each state has the right to judge for itself whether the compact has been breached and what remedies it will institute and seek, namely, secession. When these facts are recognized, this is the conclusion:

    “It depends on the state itself to retain or abolish the principle of representation, because it depends on itself whether it will continue a member of the Union. To deny this right would be inconsistent with the principle of which all our political systems are founded, which, that the people have in all cases, a right to determine how they will be governed…

    “The secession of a state from the Union depends on the will of the people of such state. The people alone, as we have already seen, hold the power to alter their constitutions. But in any manner by which a secession is to take place, nothing is more certain than that the act should be deliberate, clear, and unequivocal. To withdraw from the Union is a solemn, serious act. Whenever it may appear expedient to the people of a state, it must be manifested in a direct and unequivocal manner.” William Rawle, A View of the Constitution of the United States of America, (Dahlonega, GA, Crown Rights Book Co., [1825] 1998), 296, 302.

    So in truth, “We the People” did in fact form a more perfect union, but it was not as one body-politic. Instead, it was as the preamble to the constitution says, “We the People OF the United STATES,” where each state decided for itself to make a constitution for that body-politic, and those people alone can determine whether they will unmake that constitution for that body-politic.

    These are the principles of limited government. These are the principles of true checks against federal tyranny. These are the principles of a federal compact and federal republic. These are the principles of the Declaration of Independence. These are the principles of freedom.

    The next article will address, Anti-Secessionist Argument #3: Only the U.S. Supreme Court has the power to determine the lawfulness of a State’s Power and Authority to Secede.


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