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    A Concurring Opinion For Secession, Part 2

    Published: Sunday, February 7, 2010

    Anti-Secessionist Argument #1: To secede would cause damage to the other states given their “detrimental reliance” on the other states’ joining the union.

    In Vieira’s first point, he refers to the secessionist’ position that the US Constitution is a “contract,” thereby giving the state a right to break the contract upon a breach. However, he qualifies this position to say, a contract is no contract where the parties to it can leave it at any time without cause. In other words, where there is no binding effect upon the parties to the agreement, then the agreement has no binding effect other than a “gentlemen’s agreement.” This renders the “agreement” to be something other than a contract and implicitly is some sort of legal absurdity.

    From a natural law definition, Vieira describes what enlightenment and natural philosophers called an “imperfect obligation.” “An imperfect mutual obligation arises…when a person, while binding himself to furnish something to another, does not demand that this latter be put in his turn under obligation to him in the same way. This takes place principally in the case of gratuitous promises.” Samuel Pufendorf, Two Books on the Elements of Universal Jurisprudence, (Indianapolis, IN, Liberty Fund, 2009), 116.

    To avoid the conclusion that the US Constitution is simply a non-binding agreement upon the States, Vieira points us to “what lawyers call” detrimental reliance, offering a sort of alternative to the “contract/compact” theory of secessionists. This detrimental reliance theory is a principle of contract and natural law, as expounded by natural law jurists, and is in fact a legal cause of action used today. This principle says, where I have made a promise and as a result of that promise, you have changed your position, such that if I break my promise, you will be harmed, then an implied contract has been formed and I will be estopped from breaking my promise or alternatively will be held liable for the damages I cause you as a result of breaking my promise. Put differently, the ratifying states of the union have relied upon the other states’ ratifying the constitution and that as such, those states have formed an implied contract to remain in that same union, except by the terms of the contract, as if there is one.

    The detrimental reliance theory, however, is not at all in order as it relates to the independent actions of independent states. Is the United States perpetually bound by a treaty to a foreign country forever where that foreign country has materially breached the agreement? No one in their right mind would even suggest it. Not one state expressly conditioned their ratification of the constitution upon the guarantee that all of the ratifying states (present and future) will be bound to that union, even though all of the states knew of its possibility, given the fact that they just seceded from Great Britain.

    They joined the union based upon the moral force of commonality, as James Madison confirms in this maxim:

    “The more intimate the nature of such a union may be, the greater interest have the members in the political institutions of each other…Governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort, than those of a kindred nature.” FP 43 (emphasis added).

    What happens to the union where the principles and forms are now less adapted to a federal coalition? What happens to self-government when those elements are gone?

    And as a side, how can it be that the colonies had a right to secede from Great Britain which was a bond connected by a monarchy with no form of voluntary union present, but there can be no right to secede in a federal compact formed voluntarily by sovereign states? If the answer is, well, ALL of the colonies seceded, this does not answer the question, because each colony had the individual decision to make for itself whether or not it would secede, and they maintained that independence from each other as evidence by their Declaration to the world of being free and independent states, having all the powers that independent nations have. If there is anything that is clear from the Declaration of Independence period, it is that the people wanted to maintain a federal form of government, not a national one, just as Justice Joseph Story reflects: “The Declaration of Independence…was not the act of the whole American people.” Joseph Story, Nature of the Constitution – Whether A Compact, Book 3, Chapter 3, Sec. 330.

    However, even it were presumed that the detrimental reliance theory is applicable here, the natural and contract law principles of course work both ways: where a state has entered the union with the promise or assurance that the fundamental laws, principles and purposes of the constitution be followed, then the harmed state has a right to seek remedy for that breach and to mitigate its damages as far as possible for the preservation of that state where those guarantees are not followed.

    State Ratifications Reveal “No Detriment”

    Using the detrimental reliance argument to oppose secession ignores what the states believed to be true when entering the union; that is, they believed they had a right to withdraw themselves from the union at any time based upon the principles of a federal compact formation. Consider the state of New York’s ratification documents:

    “We, the delegates of the people of the State of New York…do declare and make known—[1] That all power is originally vested in, and consequently derived from the people, and that Government is instituted by them from their common interest, protection, and security. [2] That enjoyment of life, liberty and the pursuit of happiness, are essential rights, which every Government ought to respect and preserve. [3] That the powers of Government may be re-assumed by the people, whensoever it shall become necessary to their happiness; that every power, jurisdiction, and right, which is not be the said Constitution clearly delegated to the Congress of the United States, or to the departments of the Government thereof, remains to the people of the several States, or to their respective Governments, to whom they may have granted the same.” Stephens, A Constitutional View of the Late War Between the States, 270-271 (emphasis added).

    Here, New York put the world on notice that the people and their agents (state government) retain the right to withdraw themselves from political associations where such unions become destructive to the ends of government: “enjoyment of life, liberty and the pursuit of happiness.” Why? Because this conforms to the principles of state sovereignty, self-government and the consent of the governed. It cannot be argued that a state breaches a contract by removing itself from the relationship when the states understood and consented to this “right to withdraw” term of the contract before hand.

    Are we, their posterity, to ignore the legally binding effect of their declarative statements regarding ratification? And if we can so ignore, then why cannot we likewise ignore the supposition that the states cannot secede because our “forefathers did not want us to” or because the federal government does not want us to today? What is good for the goose is good for the gander. You cannot attempt to justify a position based upon the constitution when the documents ratifying the constitution show the opposite political intent and effect. After all, the constitution was not created and does not currently exist in a vacuum. One cannot look at the words today and apply his own subjective meaning to them. This contradicts every rule of sound construction. The constitution has certain and fixed meanings based upon the principles, philosophies, circumstances and understandings of 1787, and those meanings can most certainly be determined by the ratifying documents of the states.

    If detrimental reliance is the pad-lock holding the states together, then it most certainly is the key to unlock the states’ part in the union where the system of the union itself causes detriment to the states, such that a state’s very survival and freedom’s perpetuation is best accomplished through secession from the existing union. As soon as this theory is admitted, contract laws necessarily appear between the states and with the created federal government (the agent of the people of the states); and one must necessarily conclude that each party has a right to enforce the contract as it relates to the breach thereof, especially when the assenting document expressly declares that they have a right to withdraw from the union.

    This is why it is so important for anti-secessionists to conclude that a contract/compact does not exist between the states because to do so admits the power of the parties to determine the breach of the terms and to pursue remedies consequentially. To that end, Vieira does not admit that an implied contract exists, nor does he admit that an expressed contract exists. Why is it so important that the union not be based upon a compact? Because the rules and maxims relative to a union being formed by a federal compact necessarily confirm the states’ right to remove themselves from that union.

    The next articles will address, 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.


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