The Declaration of Independence: Thirteen Colonies Yearned to Be Free

DECLARATION OF INDEPENDENCE - Philadelphia Gazette

by Diane Rufino, July 4, 2019

Independence Day – What it really means….

What does Independence Day – the 4th of July – mean to you? Is it just a holiday to eat, drink, and light off fireworks? Do you display and wave the flag of the United States out of habit – because everyone else on the block does it? Do you cover your table with a plastic table cloth of stars and stripes and decorate your yard with red, white, and blue because that’s what Target and Walmart remind you to do with its holiday displays and sales? Do you actually understand what the 4th of July signifies? Did you sleep through that lesson in American History Class? Was it even taught to you at all?

I just hope you aren’t one of those Americans who thinks it’s the big event of the summer to enjoy cook-out food and watch fireworks.

When I was very young, I thought Independence Day marked the day when the 13 colonies defeated the British for our independence. Then in middle school, I learned that it marked the date the Declaration of Independence was signed. That was the extent of my understanding until I did my own reading. Soon I learned that not only was the Declaration of Independence signed on July 4, 1776, but that it was an act of treason against the British Crown. It was an act of treason because while the colonies were fighting for their independence, the British were fighting to quash their rebellious nature for good. Rebellion against the Crown was high treason and it would not be tolerated.

But it wasn’t until I graduated law school that I was finally able to appreciate the real significance of the Declaration of Independence. First and foremost, and above all else, it was a secessionist document. It announced the separation (secession) of America’s thirteen independent colonies from the (oppressive) mother country, Great Britain. Sure, the name of the document was “The Declaration of Independence,” which pretty much tells the reader what it will declare. And yes, the ultimate purpose of the document was to declare the intention of the colonies – to be free and independent from Great Britain. But, the American colonies could only claim their independence if and when they had severed their bonds with Great Britain. That is, they could only claim their independence once they had seceded from her.

Amazingly, I learned all about secession and about it being a fundamental, organic right that no constitution or other compact or agreement can extinguish from reading and studying the Declaration of Independence. (I never learned about it in school, which makes complete sense. The government would never want its children to grow up having a fundamental understanding of the right of secession. Abraham Lincoln, after all, is the government’s poster child, it’s greatest president…… He destroyed the idea in the mind of the States and then in the minds of American citizens that there is no right of secession).

Second of all, it set out the reasons for secession, laying the primary reason on the importance of man’s natural and inalienable rights and the right to have a government that secures them and protects them for the enjoyment and free exercise of the People. Simply put, as its author Thomas Jefferson explained: “The Declaration of Independence… is the declaratory charter of our rights, and of the rights of man.” And in that magnificent document, Jefferson has laid out the natural order of our rights and the natural purpose and limits of government.

But before I go any further into the meaning of the Declaration, I think it’s important to make clear, as Michael Maharrey makes clear in his article “The Declaration of Independence Birthed 13 Sovereign Nations,” (Tenth Amendment Center, July 3, 2019), that July 4, 1776 marks the date when thirteen independent colonies, not a consolidated group of colonies, declared their independence. When the war was concluded, when Lord Cornwallis surrendered at Yorktown on October 19, 1781 and then when the Treaty of Paris was signed on September 4, 1783, what was birthed was NOT an independent United States of America (one nation) but rather thirteen independent States, united in their affection for one another and their willingness to work together for common goals.

Just look at the words of the Declaration and of the Treaty of Paris.

The last paragraph of the Declaration famously reads:

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.

One of the key points of the Treaty of Paris reads: “Britain acknowledges the United States (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, and that the British Crown and all heirs and successors relinquish claims to the Government, property, and territorial rights of the same, and every part thereof.”

The Declaration of Independence was almost forced on the colonies by history’s happenstance. It began with the colonies’ restlessness in the wake of an over-zealous King and Parliament which first sought to extract tax revenue from them (without representation) and then to oppress and subjugate them as a means of punishment. They were punished for daring to stand up for their rights as Englishmen, as Englishmen had done for over 500 years of their history. Indeed, the history of England has been a history of repeated attempts, first by the barons and then by all subjects, to assert basic human rights and to demand from the King a promise (a charter) that he will respect such. Some of the attempts were successful and some only temporary, but all of England’s notable charters were signed and limited the reach of the King and Parliament, even if only for a very short time.

Some of these charters and other significant documents include: The Charter of Liberties of King Henry I (1100), the Magna Carta (1215), the Petition of Right (1628), the Grand Remonstrance (1641), and the English Bill of Right of 1689. This history is critical for the foundation for our country because all total, these documents establish the notion that government must respect boundaries on the individual, acknowledging that they have certain essential rights and liberties. The rights and liberties asserted and re-asserted in these documents are the “rights of Englishmen” that the colonists most eagerly embraced and were most eager to protect.

Author Brion McClanahan explains the significance of England’s grand history in his article Rethinking the Declaration of Independence: “In 1100, King Henry I of England agreed to restrictions on his power through the Charter of Liberties. The English barons rejected absolute authority and sought to preserve traditional decentralized “government.” Just over one hundred years later, in 1215, King John was forced again by the English nobles to sign the Magna Charta. The “Great Charter,” as it is known in English, declared that the king was not above the law – making him essentially equal to the nobles – and it resisted the trend toward centralization in England. Though on the books, the Magna Charta was often ignored by more powerful English monarchs, but several of its provisions became the basis of English common law, most notably the writ of habeas corpus.” (See the Habeas Corpus Act of 1679).

In October 1214, King John returned to England in disgrace. His mission to reconquer his lost territory in northern France had failed and other military campaigns were unsuccessful as well. He taxed England’s barons heavily to finance these campaigns and they were not happy. Upon his return, he found that a group of angry barons from across the country had formed an association and were prepared renounce him as king. Over the next eight months, they made repeated demands to the King, requesting that he give them a guarantee that he would observe their rights. But the negotiations amounted to nothing. And so, on May 5 of that year, the barons gathered and agreed to declare war on King John. On May 17, 1215 they captured London, the largest town in England, without a fight. With London lost and ever more supporters flocking to the side of the barons, the King John realized he would have to address their concerns.

On June 8, he notified the barons of his willingness to negotiate. Over the next few days, the barons assembled in great numbers at Runnymede, a relatively obscure meadow just a few miles from Windsor castle, where King John was based. They arrived to repeat their demands and negotiate peace terms. On June 15, the barons presented their terms to the King and he signed the great document – The Great Charter (“Magna Carta”).

In Chapter 39 of Magna Carta, one of the document’s most important clauses, King John made the following promise: “No freeman shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”

Here, it was agreed that the Crown and his administration would not arrest, outlaw, banish, or incarcerate any free man, deprive him of his rights, possessions or legal standing, or otherwise take official and forceful action against him, except in accordance with the lawful judgement of his equals or in accordance with the laws of the Kingdom. This was, in embryonic form, the principle of due process of law: The government shall not deprive any person subject to its jurisdiction of life, liberty, or property without due process of law. The Magna Carta provided that justice was to be guaranteed to every person in the Kingdom, that the right of justice would not be sold, delayed, or denied to any person. Thus, this critical, historic document provided that every freeman — i.e., every Englishmen who was not a serf — was to enjoy security and protection from illegal interference by the King (ie, government) in his person and property. [See Dr. Almon Leroy Way, Jr. (Professor of Political Science), “The American System of Government….”] The terms listed in the Magna Carta would later be referred to as “the ancient rights and liberties of Englishmen” in the English Bill of Rights of 1689.

King John, in giving his consent to Magna Carta, agreed that: (1) the Monarch was subject to the law of the Kingdom and (2) the law placed limits on royal authority. This reflected an early stage in the development of the central idea of English and American constitutionalism — the idea that the ruler was not above the law and therefore had to abide by the law and stay within the limits the law imposed on his power. [See Dr. Almon Leroy Way, Jr.]

Under Magna Carta, the King still governed England, but he had to share with the barons one important sphere of political authority — the power of taxation. All royal requests for extraordinary taxes had to be submitted to the Common Council for its consideration and decision. When it came to the King’s raising revenue by means other than collecting the feudal fees and aids in amounts due him by customary right, he had to share with the barons, the largest and most powerful bloc in the Common Council, the authority to make binding decisions. The requirement, stipulated in Magna Carta, that the King submit proposals for extraordinary taxation to an assembly of his leading subjects — the barons and the Church officers of high rank — was one small but significant step on the long road to firmly establishing as a constitutional guarantee, truly binding on the Monarch and all other officers of the government, the age old principle of English government that no subject could be taxed without his consent, given by the subject directly in person or indirectly through elected representatives in a legislative assembly. [See Dr. Almon Leroy Way, Jr.].

When Britain began taxing the colonies without allowing them representation in Parliament, particularly with the Stamp Tax, the colonists asserted this basic right from the Magna Carta in their protest slogan “No taxation without representation.” The phrase actually originated with Massachusetts attorney James Otis about 1761, who proclaimed: “Taxation without representation is tyranny!”

After the Magna Carta, the Petition of Right of 1628, which was written by Parliament, was presented to King Charles I to re-assert the civil liberties of his subjects. The Petition contained four main points: (1) No taxes could be levied without Parliament’s consent; (2) No English subject could be imprisoned without cause–thus reinforcing the right of habeas corpus; (3) No quartering of soldiers in citizens’ homes; and (4) No martial law may be used in peacetime. Each of these four points enumerated specific civil rights that Englishmen felt Charles I had breached throughout his reign. Although he’d never been that popular as the monarch, his abuse of power against the people escalated to an intolerable level after Parliament refused to increase taxation and finance his unpopular foreign policies. The purpose of the Petition was to seek redress for the serious grievances Charles had committed.

When Charles showed no sign of repenting, Parliament drafted an extensive list of grievances which it presented to him on December 1, 1641. The grievances included 204 instances of gross abuses of the King’s power and usurpations of the rights of the people. Preceding this list of grievances were the following significant paragraphs:

For the preventing of those miserable effects which such malicious endeavours may produce, we have thought good to declare the root and the growth of these mischievous designs: the maturity and ripeness to which they have attained before the beginning of the Parliament: the effectual means which have been used for the extirpation of those dangerous evils, and the progress which hath therein been made by His Majesty’s goodness and the wisdom of the Parliament: the ways of obstruction and opposition by which that progress hath been interrupted: the courses to be taken for the removing those obstacles, and for the accomplishing of our most dutiful and faithful intentions and endeavours of restoring and establishing the ancient honour, greatness and security of this Crown and nation.

The root of all this mischief we find to be a malignant and pernicious design of subverting the fundamental laws and principles of government, upon which the religion and justice of this kingdom are firmly established.

The Grand Remonstrance would help precipitate a civil war in England and eventually lead Parliament to file official charges of high treason against Charles I. He would be tried, convicted, and executed (beheaded) in 1649. His son Charles II was exiled and his other son James II was able to escape to France dressed as a girl.

When England erupted in this civil war, the Parliament asserted its authority and suspended the reign of the Monarch, and by 1688 had become the driving force behind English law and policy. From 1649 to 1660, England became a republic. At first it was ruled by Parliament, but in 1653, Oliver Cromwell, commander of the army, became Lord Protector of England and served until he died (1658; his son took over briefly). Eventually the blood line of Charles I was restored in 1660 first with Charles II (who sat on the throne at the time of the plague and the great fire of London) and then in 1665, with James II. He was terribly unpopular, and in fact, was widely hated by the people. Not only did he force his Roman Catholic faith on the British people, but he willingly allowed the persecution of Protestants. He was forced to give up the crown in the Glorious Revolution (the “Bloodless Revolution”) of 1688.

When King James II was expelled from England in 1688, Parliament invited King William III of Orange and his wife Mary II (daughter of James II), of the Netherlands, to assume the throne. Parliament promised no resistance. The only requirement was that they sign the English Bill of Rights that Parliament had drawn up on behalf the people. It condemned James II for violating the rights of Englishmen, which the Parliament called the “laws and liberties of this kingdom,” and placed restrictions on the powers of the monarch. William and Mary “gladly accepted what was offered them” and signed the English Bill of Rights.

Those from England who settled the colonies, particularly Massachusetts, seeking freedom from religious persecution (Puritans and Pilgrims) and others, brought this history – and these rights – with them. After all, they were still Englishmen; they were living on a continent claimed by England and establishing settlements and communities pursuant to land patents issued by the King.

But the bond of affection would seem to be one-way only. While the colonists sought to live as loyal subjects to the Crown, enjoying the same the rights and liberties as the citizens of England, England sought to exploit the colonies for raw materials, trade, and taxes. For several years, things were good. No complaints. But just as the British colonies were growing and expanding, there were French colonies growing and expanding as well – in the frontier region west of Virginia up to Canada. They were mainly fur-trappers. Eventually, Britain felt its American colonies and interests were being threatened and the two empires went to war. It lasted seven years (the French-Indian War, aka, the Seven Years War, 1754–1763), and eventually, the French were expelled and England secured greater territory. Believing the war was primarily for the benefit of the safety and security of the colonies, Parliament enacted a series of taxes on the colonies to recoup the money it had spent. [Note that around 1750, the plantations were established and against the wishes of the colonies, Britain pushed the slave trade on them to ensure that raw materials such as sugar, tobacco, indigo, cotton, and rice were produced plentifully and productively and shipped to England]

Accordingly, Parliament enacted the following taxes: The Navigation Acts (1651, 1660, and 1663; duties on tobacco and molasses, to name a few), the Plantation Duty Act (1673; a duty on plantations), the Sugar Act (1764; a duty or tax on sugar), the Stamp Act (1765; a tax on all documents, including legal documents, calendars, cards, etc), and the Townshend Acts (1767; duties on items imported by the colonists, including glass, lead, paints, paper, and tea). The colonists were outraged. They weren’t outraged at the taxes themselves, but rather by the violation of their essential right to have representation in the legislative body that passes such tax measures. “No Taxation Without Representation!” They compared the current king, King George III, to Charles I for indiscriminately taxing the colonies without their consent. The Sons of Liberty organized at this time – originating in Massachusetts and New York and eventually having a presence in all thirteen colonies – and they were extremely effective at protesting these taxes and frustrating their enforcement.

Protests heightened with the passage of the Tea Act in 1673. The Tea Act allowed the British East India Company, which had a surplus of tea, to have a monopoly on import tea to the colonies. In passing this act, Parliament actually thought it was doing a favor to the colonies by providing tea at a reduced price (due to the surplus). In fact, the cost of the tea, together with the new tax (“a mere 3 pence”), would be lower than the cost of the tea provided by other sources. But Parliament didn’t get it. The colonists didn’t think government had the right to force a monopoly on them and interfere with the trade of colonial tea merchants. Colonial merchants couldn’t compete with the less-expensive tea that the East India Tea Company provided so abundantly. And so, the colonists once again took matters in their own hands. In Pennsylvania and New York, colonists did not allow British tea ships to enter the large city ports. They sent ships out into the harbors to block the tea ships. In Boston, they had a “party.” On that evening of December 16, 1773, approximately 100 “radicals,” members of a secret organization of American Patriots called the Sons of Liberty, dressed up as Mohawk Indians, boarded three East India Company ships, broke open all 342 wooden chests of tea, and dumped them into the Boston Harbor. The value of the tea destroyed, in today’s market, would amount to about $1 million.

Well, that particular act of protest was the one that the broke the camel’s back. At first King George III didn’t seem too perturbed at the incident, but soon, the tide of British public opinion would grow against the colonists, whom they regarded as rebellious and childish, and that rising sentiment would force Parliament and King George to punish the citizens of Boston for their recalcitrance. Parliament would no longer tolerate disobedience; the colonies’ “rebellious spirit” would finally have to be addressed and they would have be made to obey British laws. Parliament would no longer be soft when it came to obeying British laws. It would show the colonies what happens to those who happen to have a “rebellious spirit” and are disobedient, and in doing so, reinforce upon them the need to obey its laws. What followed would be a series of laws called the “Coercive Acts” (also referred to as the “Intolerable Acts”).

On March 28, 1774, in response to the Boston Tea Party, Parliament passed four acts which together became known as the Coercive Acts. These individual acts included: (1) The Boston Port Act, which closed the port of Boston until damages from the Boston Tea Party were paid (no ship carrying colonial goods could enter or leave Boston Harbor until the Massachusetts Colony paid for all the tea that was destroyed); (2) The Massachusetts Government Act, which effectively revoked Massachusetts Charter of the Province of Massachusetts Bay (1691), its colonial charter, prohibited democratic town meetings, and turned the royal governor’s council into an appointed body with wide-ranging powers (in other words, shifting government authority from Massachusetts colony to the royal governor); (3) The Administration of Justice Act, which made British officials immune to criminal prosecution in Massachusetts; and (4) The Quartering Act, which required colonists to house and quarter British troops on demand, including in their private homes as a last resort.

Indeed, the situation was intolerable. Parliament ordered the Royal Navy to blockade the Boston Harbor, preventing ships from entering and bringing in goods and supplies and blocking colonial merchant ships from leaving and selling their goods. By fiat, the basic structure of colonial government was altered. England was now governing the colony. To add insult to injury, King George appointed General Thomas Gage, who had served as the head of the British Army in North America, as the new Governor of Massachusetts, and he brought troops with him. On May 13, General Gage arrived in Boston with four regiments of troops. Aside from the fact that the colonists felt stripped them of their previously enjoyed rights, perhaps more unnerving was the presence of four thousand British soldiers in Boston. Under the Quartering Act, there would be guaranteed residence for the British Army and the citizens of Massachusetts would be required to quarter them, if necessary (otherwise they would have to remain on ships). The Quartering Act required the colonies to house British soldiers in barracks provided by the colonies. If the barracks were too small to house all the soldiers, then localities were to accommodate the soldiers in local inns, stables, ale houses, and houses of sellers of wine. Should there still be soldiers without accommodation after all such public houses were filled, the colonies were then required to take, hire and make fit for the reception of his Majesty’s forces, such and so many uninhabited houses, outhouses, barns, or other buildings as shall be necessary. Finally, British officials could abuse these acts and be free from prosecution in the colony.

In response, provincial militias started to gather munitions and store them in the countryside out of reach of the British regulars.

On May 26, Parliament dissolved Virginia’s colonial government – its Virginia House of Burgesses. And on September 1, General Gage seized the Massachusetts Colony’s arsenal at Charlestown, located just across the Charles River from Boston – near Bunker Hill.

On Benjamin Franklin’s advice, the colonies decided to meet in a common body to address Britain’s treatment of the colonies, in particular the blockade of Boston Harbor and the Intolerable Acts on the Province of Massachusetts. And so, on September 5, the First Continental Congress met with 56 delegates in Carpenters Hall in Philadelphia. Twelve out of the thirteen colonies sent delegates (Georgia did not send any). The Continental Congress, which would meet on two separate occasions, became the governing body of the “united” colonies during the time leading up to and then during the American Revolution.

On October 14, the First Continental Congress adopted a Declaration and Resolves against the blockade, the Coercive Acts, the Quartering of troops, and other objectionable British actions. These resolutions listed a series of grievances against Parliament (where have we seen that response before?) and appealed to the King to intercede on behalf of the colonies for proper respect for their rights as Englishmen. The Declaration and Resolves began as follows:

The good people of the several colonies of New-Hampshire, Massachusetts-Bay, Rhode Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Newcastle, Kent, and Sussex on Delaware, Maryland, Virginia, North- Carolina and South-Carolina, justly alarmed at these arbitrary proceedings of parliament and administration, have severally elected, constituted, and appointed deputies to meet, and sit in general Congress, in the city of Philadelphia, in order to obtain such establishment, as that their religion, laws, and liberties, may not be subverted: Whereupon the deputies so appointed being now assembled, in a full and free representation of these colonies, taking into their most serious consideration, the best means of attaining the ends aforesaid, do, in the first place, as Englishmen, their ancestors in like cases have usually done, for asserting and vindicating their rights and liberties, DECLARE,

That the inhabitants of the English colonies in North-America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts, have the following RIGHTS:

Resolved, N.C.D. 1. That they are entitled to life, liberty and property: and they have never ceded to any foreign power whatever, a right to dispose of either without their consent.
Resolved, N.C.D. 2. That our ancestors, who first settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural- born subjects, within the realm of England.
Resolved, N.C.D. 3. That by such emigration they by no means forfeited, surrendered, or lost any of those rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them, as their local and other circumstances enable them to exercise and enjoy.
Resolved, 4. That the foundation of English liberty, and of all free government, is a right in the people to participate in their legislative council: and as the English colonists are not represented, and from their local and other circumstances, cannot properly be represented in the British parliament, they are entitled to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation can alone be preserved.

The Declaration and Resolves was presented to the King and then to Parliament on January 19, 1775. King George laughed and dismissed the document and the Parliament did not even address it. King George, to whom the Declaration was addressed, never even offered a formal response, for in his mind, he did not have to submit to the demands of the colonists, whom he regarded as insolent children. He famously said to the Prime Minister Lord North: “The die is now cast, the colonies must either submit or triumph.” He would not negotiate with them. His tacit response made it clear that he meant to maintain political unity between the colonies and the United Kingdom even at the expense of the happiness of the colonists.

Word of the Intolerable Acts and the subjugation of the colonists in Boston began to spread to other colonies and they began to react. Perhaps the most famous response came from Virginia, and Patrick Henry!

Because England had dissolved Virginia’s colonial government, its Virginia House of Burgesses, the state’s colonial leaders were forced to meet in secret. And so they did, on March 20, 1775, at a small church which is now called St. John’s Church, in Richmond, away from the Capitol in Williamsburg. Delegate Patrick Henry presented resolutions to raise a militia, and to put Virginia in a posture of defense. He believed that martial law would eventually come to Virginia. Henry’s opponents urged caution and patience, holding out hope that the King would eventually respond – and respond generously – to the Declarations and Resolves. On the evening of the 23rd, Henry presented a proposal to organize a volunteer company of cavalry or infantry in every county of Virginia and delivered a fiery speech in support of it. His final words “Give Me Liberty or Give Me Death!” would be a rallying cry for the cause of independence and indeed, his entire speech is probably the most stirring, most passionate case in defense of liberty in our American history.

The question before the House is one of awful moment to this country. For my own part, I consider it as nothing less than a question of freedom or slavery; and in proportion to the magnitude of the subject ought to be the freedom of the debate. It is only in this way that we can hope to arrive at truth, and fulfil the great responsibility which we hold to God and our country. Should I keep back my opinions at such a time, through fear of giving offence, I should consider myself as guilty of treason towards my country, and of an act of disloyalty toward the majesty of heaven, which I revere above all earthly kings.

Mr. President, it is natural to man to indulge in the illusions of hope. We are apt to shut our eyes against a painful truth, and listen to the song of that siren till she transforms us into beasts. Is this the part of wise men, engaged in a great and arduous struggle for liberty? Are we disposed to be of the number of those who, having eyes, see not, and, having ears, hear not, the things which so nearly concern their temporal salvation? For my part, whatever anguish of spirit it may cost, I am willing to know the whole truth; to know the worst, and to provide for it.

I have but one lamp by which my feet are guided; and that is the lamp of experience. I know of no way of judging of the future but by the past. And judging by the past, I wish to know what there has been in the conduct of the British ministry for the last ten years, to justify those hopes with which gentlemen have been pleased to solace themselves, and the House? Is it that insidious smile with which our petition has been lately received? Trust it not, sir; it will prove a snare to your feet. Suffer not yourselves to be betrayed with a kiss. Ask yourselves how this gracious reception of our petition comports with these war-like preparations which cover our waters and darken our land. Are fleets and armies necessary to a work of love and reconciliation? Have we shown ourselves so unwilling to be reconciled, that force must be called in to win back our love? Let us not deceive ourselves, sir. These are the implements of war and subjugation; the last arguments to which kings resort. I ask, gentlemen, sir, what means this martial array, if its purpose be not to force us to submission? Can gentlemen assign any other possible motive for it? Has Great Britain any enemy, in this quarter of the world, to call for all this accumulation of navies and armies? No, sir, she has none. They are meant for us; they can be meant for no other. They are sent over to bind and rivet upon us those chains which the British ministry have been so long forging. And what have we to oppose to them? Shall we try argument? Sir, we have been trying that for the last ten years. Have we anything new to offer upon the subject? Nothing. We have held the subject up in every light of which it is capable; but it has been all in vain. Shall we resort to entreaty and humble supplication? What terms shall we find which have not been already exhausted? Let us not, I beseech you, sir, deceive ourselves. Sir, we have done everything that could be done, to avert the storm which is now coming on. We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne. In vain, after these things, may we indulge the fond hope of peace and reconciliation. There is no longer any room for hope. If we wish to be free² if we mean to preserve inviolate those inestimable privileges for which we have been so long contending²if we mean not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon until the glorious object of our contest shall be obtained, we must fight! I repeat it, sir, we must fight! An appeal to arms and to the God of Hosts is all that is left us!

They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance, by lying supinely on our backs, and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot? Sir, we are not weak if we make a proper use of those means which the God of nature hath placed in our power. Three millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us. Besides, sir, we shall not fight our battles alone. There is a just God who presides over the destinies of nations; and who will raise up friends to fight our battles for us. The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave. Besides, sir, we have no election. If we were base enough to desire it, it is now too late to retire from the contest. There is no retreat but in submission and slavery! Our chains are forged! Their clanking may be heard on the plains of Boston! The war is inevitable²and let it come! I repeat it, sir, let it come.

It is in vain, sir, to extenuate the matter. Gentlemen may cry, Peace, Peace²but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!

Patrick Henry succeeded in convincing the body of delegates to pass his resolutions. Virginia would call up a militia.

On April 14, 1775, General Gage received orders from London to take decisive action against the rebel-rousers of Boston – the leaders of the Sons of Liberty, Samuel Adams and John Hancock. In the wee hours of the April 19, seven hundred British troops were dispatched to Lexington, where they would capture Adams and Hancock, and then to Concord, where they would seize a secret stockpile of colonial gunpowder (Gage had received intelligence about its location). But spies and friends of the Sons of Liberty leaked word of Gage’s plan. One lantern hanging from Boston’s North Church informed the countryside that the British were going to attack by land and two lanterns if they were going to attack by sea. A series of horseback riders – Paul Revere, William Dawes and Dr. Samuel Prescott – galloped off to warn the countryside that British troops were coming.

Word spread from town to town, and militias prepared to confront the British and help their neighbors in Lexington and Concord. Colonial militias had originally been organized to defend settlers from civil unrest and attacks by French or Native Americans and selected members of the militia were called “minutemen” because they could be ready to fight in a minute’s time. Sure enough, when the advance guard of nearly 240 British soldiers arrived in Lexington during the early morning hours, they found about 70 minutemen waiting for them on Lexington Green. Both sides eyed each other not knowing what to expect or what to do. Suddenly, a bullet rang out. It would be known as “the shot heard round the world.” Seven American militiamen were killed in that skirmish. The British retreated to Concord, where they found an even larger, more organized group of militiamen. They then retreated back to Boston, and as they did so, new waves of Colonial militia intercepted them. Shooting from behind fences and trees, the militias inflicted over 125 casualties, including several officers. The American Revolution had begun. By happenstance…. not because of the blockade of Boston Harbor, not because of the Intolerable Acts, not because of the quartering of troops, not because of King George’s rejection of the pleas of the Colonies in the Declarations and Resolves, and not because of the other instances of mistreatment of the colonies. It was because the British had come for their ammunition.

Thus, the war for independence began over the colonists’ right to bear arms and store ammunition for their defense.

Not fully expecting the standoff in Massachusetts to explode into full-scale war, the thirteen colonies agreed to reconvene the Continental Congress in Philadelphia on May 10, 1775. Samuel Adams, John Adams, Benjamin Franklin, John Hancock, Patrick Henry, Thomas Jefferson, and George Washington were some of the esteemed delegates.

By the time the Second Continental Congress met again, war was already underway, and so its purpose primarily became to conduct the war and manage the efforts. Already, colonial militias had seized arsenals, driven out royal officials, and besieged the British army in the city of Boston. On June 14, the Congress voted to create the Continental Army out of the militia units around Boston and quickly appointed Congressman George Washington of Virginia as the Commanding General of the Continental Army. On July 6, Congress approved a Declaration of Causes outlining the rationale and necessity for taking up arms in what had become the American Revolutionary War. The original draft was written by Thomas Jefferson but the final was written by John Dickinson of Pennsylvania. Much of Jefferson’s language was retained in the final draft. The Declaration insisted that the colonists do not yet seek independence from the mother country but were forced to take up arms “in defense of the Freedom that is our Birthright and which we ever enjoyed until the late Violation of it”, and will “lay them down when Hostilities shall cease on the part of the Aggressors.’ [Interestingly, the very first sentence of the declaration includes a condemnation of the institution of slavery, which the Crown imposed on the colonies].

On July 8, 1775, the Second Continental Congress drafted what was called the Olive Branch Petition, which it sent to the British Crown as a final attempt at reconciliation. In it, the colonies expressed their collective desire to remain loyal to the British crown. King George, however, refused to receive it.

Rather, on October 27, the King spoke before both houses of the British Parliament to discuss the growing concern about the rebellion in America, which he viewed as a traitorous action against himself and Great Britain. He began his speech by reading a “Proclamation of Rebellion” and urged Parliament to move quickly to end the revolt and bring order to the colonies. He spoke of his belief that “many of these unhappy people may still retain their loyalty, and may be too wise not to see the fatal consequence of this usurpation, and wish to resist it, yet the torrent of violence has been strong enough to compel their acquiescence, till a sufficient force shall appear to support them.” With these words, the king gave Parliament his consent to dispatch troops to use against his own subjects, a notion that his colonists believed impossible.

At this point, note that just as the British continued to implore the King to respect their rights and liberties with their various charters and petitions and remonstrances, the colonists followed their same path. The colonies would have preferred to remain associated with Great Britain through bonds of affection and respect, sharing the history and bounded government that had been established for over 500 years, but for over 15 years, the actions and reactions by King and Parliament amounted to “a history of repeated injuries and usurpations” which were clearly designed to establish absolute rule over the colonies. We can see how England’s own history is providing the path – even the format and the words – for Jefferson’s Declaration of Independence.

Thomas Paine, who moved to the colonies from England at the end of 1774, published his pamphlet “Common Sense” in January 1776. Common Sense advocated independence from Great Britain; Paine used moral and political arguments to encourage common people in the Colonies to fight for an independent government – one that suited their happiness; he appealed to their common sense. And it worked. The publication was wildly popular.

The two sides had once and for all reached a final political impasse and the bloody War for Independence would now be conducted in earnest. The skirmish had now become a war for independence.

On April 12, the state of North Carolina authorized her delegates to the Continental Congress to vote for independence. This was the first official action by a colony calling for independence. The 83 delegates present in Halifax at the Fourth Provincial Congress unanimously adopted the Halifax Resolves. The Resolves read:

“The Select Committee taking into Consideration the usurpations and violences attempted and committed by the King and Parliament of Britain against America, and the further Measures to be taken for frustrating the same, and for the better defense of this province reported as follows, to wit,

It appears to your Committee that pursuant to the Plan concerted by the British Ministry for subjugating America, the King and Parliament of Great Britain have usurped a Power over the Persons and Properties of the People unlimited and uncontrolled; and disregarding their humble Petitions for Peace, Liberty and safety, have made divers Legislative Acts, denouncing War Famine and every Species of Calamity against the Continent in General…..

Resolved that the delegates for this Colony in the Continental Congress be empowered to concur with the delegates of the other Colonies in declaring Independency….

North Carolina’s state flag proudly displays this historic date.

Virginia followed suit. On May 15, 1776, the Virginia Convention passed a similar resolution. It read:

Resolved, unanimously, that the Delegates appointed to represent this Colony in General Congress be instructed to propose to that respectable body to declare the United Colonies free and independent States, absolved from all allegiance to, or dependence upon, the Crown or Parliament of Great Britain; and that they give the assent of this Colony to such declaration, and to whatever measures may be thought proper and necessary by the Congress for forming foreign alliances, and a Confederation of the Colonies, at such time and in the manner as to them shall seem best: Provided, That the power of forming Government for, and the regulations of the internal concerns of each Colony, be left to the respective Colonial Legislatures.

At that same Convention, Virginia decided to instruct its delegate in the Second Continental Congress to introduce a formal resolution to declare the colonies independent from Great Britain. And so, on June 7, delegate Richard Henry Lee, introduced a resolution, termed the Lee Resolution or Resolution of Independence, which contained three parts: (1) to declare the united Colonies rightfully independent of the British Empire: (2) to establish a plan for establishing foreign relations with the Colonies; and (3) to establish a plan of a confederation to unite them officially.

The Lee Resolution simply read:

Resolved, 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;

That it is expedient forthwith to take the most effectual measures for forming foreign Alliances;

That a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation.

On June 11, 1776, the Second Continental Congress appointed three concurrent committees in response to the Lee Resolution – one to draft a declaration of independence, a second to draw up a plan of treaties “for forming foreign alliances,” and a third to “prepare and digest the form of a confederation.” A Committee of Five was assembled to draft a document to explain the reasons for independence and it included John Adams of Massachusetts, Roger Sherman of Connecticut, Benjamin Franklin of Pennsylvania, Robert Livingston of New York, and Thomas Jefferson of Virginia. According to Adams, Jefferson proposed that he, Adams, do the writing of the document, but he declined. Rather, Adams said, it should be Jefferson. Jefferson was known for his writing skills. As Adams told him: “Reason first: you are a Virginian and a Virginian ought to appear at the head of this business. Reason second: I am obnoxious, suspected and unpopular. You are very much otherwise. Reason third: You can write ten times better than I can.”

Jefferson completed his draft of the declaration in just a few days. He argued in his opening two paragraphs that individuals have inalienable rights, that governments are instituted by consent of the people primarily to secure those rights, and that people have the right to overthrow their government when it abuses their fundamental natural rights over a long period of time. Then, in a direct attack on King George (in like fashion to the Grand Remonstrance of 1641 and the English Bill of Rights of 1689), Jefferson listed 27 grievances against King George III – 27 instances when the king violated the “the ancient rights and liberties” of the American colonists. Having thoroughly laid out his proof that the king was a “tyrant” who was “unfit to be the ruler of a people,” Jefferson continued on to condemn the British Parliament and the British people. “These unfeeling brethren,” he wrote, had reelected members of Parliament who had conspired with the king to destroy the rights of the colonists. Jefferson ended his draft by stating, “we do assert and declare these colonies to be free and independent states….. ”

When Jefferson submitted his draft to the Congress on June 28, the delegates left the first two paragraphs essentially unchanged. Instead, they concentrated on Jefferson’s list of grievances against King George and the British people. On July 2, 1776, the Second Continental Congress voted to declare the independence of the American colonies from English rule. And on the July 4 – the Fourth of July – it approved the final edited version of the Declaration of Independence.

News of the colonies’ independence rang out in all the colonies.

While the 4th of July is the date that we celebrate the signing of the Declaration of Independence, the 56 signers didn’t actually affix their signatures until August 2. John Hancock, President of the Continental Congress, was the first to sign his name and he did so in big letters. The story goes that after he signed his name, he gazed upon it and said: “There! His Majesty can now read my name without his spectacles!”

In explaining the Declaration of Independence, Jefferson wrote: “This was the object of the Declaration of Independence. Not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent, and to justify ourselves in the independent stand we are compelled to take. All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc.”

For most of my life, I marveled at the Declaration. Its words were stirring, its declarations were brilliant, its indictment of King George was compelling, and its conclusion was heroic. I assumed the ideas, the words, and the flair were all the brainchild of Jefferson. But after reviewing the historical documents he had studied all his life, and taking into account the various resolutions and declarations written and adopted by the various colonies at the time, it’s quite clear that the Declaration is a composite of several documents. First of all, Jefferson essentially copied the form of the English Bill of Rights (and to some degree the Grand Remonstrance before it) as he sat down to compose his draft. Thus, Jefferson’s indictment of King George III was not a radical departure from accepted English practices. He was following English tradition, which in turn he adapted to American circumstances. I’ve seen signs and tee shirts calling our Founding Fathers “Our Founding Liberals,” but realizing that Jefferson, in writing the Declaration, followed established English tradition and re-asserted the “ancient rights and liberties” that for over 500 years have defined Englishmen, our Founders were actually quite conservative.

Winston Churchill commented on this tradition: “We must never cease to proclaim in fearless tones the great principles of freedom and the rights of man which are the joint inheritance of the English-speaking world and which through Magna Carta, the Bill of Rights, the Habeas Corpus, trial by jury, and the English common law find their most famous expression in the American Declaration of Independence.”

In addition to historic English documents, Jefferson also borrowed language from George Mason’s Virginia Declaration of Resolves in drafting the Declaration. Mason asserted that “all men are by nature equally free and independent, and have certain inherent rights…namely the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and maintaining happiness and safety.” Jefferson altered – shortened – his language in his original draft to state: “We hold these truths to be sacred and undeniable: that all men are created equal; that they are endowed by their creator with inherent and inalienable rights; that among these are life, liberty, and the pursuit of happiness.” In fact, Jefferson adopted his famous phrase from John Locke’s 1689 publication Two Treatises on Civil Government – “life, liberty, and the pursuit of happiness.” Everyone at the time understood that Jefferson equated “happiness” with property and safety. By “equal,” Jefferson meant that all citizens or freeholders are, as Mason wrote, born “equally free and independent” under the law. Note that the barons of England asserted their legal equality with the king in 1100 and 1215. So, Jefferson was not stating anything new. [ See Brion McClanahan, “Rethinking the Declaration of Independence”]

By its very name, the Declaration of Independence was a bold assertion of independence. Because it was asserted in defiance of the King, it was a highly treasonous document. Its signers were traitors. The outcome of the war would decide their fate. On October 19, 1781, British General Cornwallis surrendered his troops at Yorktown, Virginia and the British were defeated. After six years of fighting, the Colonies had won their independence. And once the Colonies had become independent, the Declaration essentially ceased to have any legal force. That which it sought to accomplish had been accomplished.

But that’s not where the Declaration of Independence’s story ends.

The Declaration may lack legal force but nonetheless, it remains the source of all legitimate political authority here in the United States and it memorializes the principles on which our country is founded. Abraham Lincoln once referred to the principles embodied in the Declaration of Independence as “the electric cord that links the hearts of patriotic and liberty-loving men together, that will link those patriotic hearts as long as the love of freedom exists in the minds of men throughout the world.” And Calvin Coolidge remarked that “the doctrine of the Declaration of Independence predicated upon the glory of man and the corresponding duty to society that the rights of citizens ought to be protected with every power and resource of the state, and a government that does any less is false to the teachings of that great document — false to the name American.”

A review of the most famous paragraphs of the Declaration remind us of the essential principles that make up our political foundation and ground our precious liberties.

The first paragraph reads:

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

The first paragraph characterizes the nature of the Declaration. When Jefferson writes that it is time for the colonies “to dissolve the political bonds which have connected them with another” he is saying that the colonies intend to secede from Great Britain. The Declaration, first and foremost, is a secessionist document. What follows in the other paragraphs are the reasons and explanations for the decision to “dissolve their political bonds”; that is, to secede.

The phrase “the separate and equal station to which the Laws of Nature and Nature’s God entitle them” is a particularly significant one. It means that our rights are not a gift from the State, but arise from our nature. This marks a paradigm shift from the system in England. English law was still dictated by the Divine Right of Kings. Even though charters, petitions, and a Bill of Rights put limitations on the Crown and to some extent, on government in general, they still acknowledged that the King and the State had power over the individual. Without such charters, petitions, and Bill of Rights, the King and government could treat the individual as it wanted, generously or oppressively. Thomas Jefferson was making it clear that in the United States, rights are NOT a gift from the State, to be enjoyed at its benevolence, but rather that they arise from Nature and from God, separately and equally. God and Nature go hand in hand. God who created the heavens and the Earth also created the laws of nature. For those who believe God to be the great author of Nature, then rights come from Him, as our Creator. For those who lack faith, they can rest assure that our Declaration equally recognizes that all individuals possess fundamental rights because they are natural rights – part of our very humanity from birth. Even if you do not believe in a God Almighty, still you must respect the laws of nature. In this way, Jefferson was laying out the concept of Individual Sovereignty in a way that its people could universally understand and agree, irrespective of the particulars of their individual and very diverse faiths. Individual Sovereignty is the basis of our Rights in this country.

We may argue yet what are Nature’s Laws, but this much we can be certain: All people must observe and ultimately obey it, just as the laws of nature apply equally to all human beings. Since governments are merely fictional entities created by mankind and not by nature, rights supersede government. Saying that government is more important than the individual would be “unnatural.”

In the second paragraph of 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 shewn, 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. Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

In this paragraph, Jefferson’s mighty pen goes into greater detail about the nature of the aforementioned natural rights. He tells us that our rights, which are endowed by our Creator (or Nature), are unalienable and although are numerous, the most obvious ones are “Life, Liberty and the pursuit of Happiness.” “Unalienable” (which is the same as “inalienable”) means that the individual can never been divested of these rights. They cannot be taken away or denied. They remain with the individual and government cannot take them away. “Life,” of course, is clear enough. “Liberty,” according to Jefferson, was the degree to which an individual can exercise his rights, his freedom. The rights which come under this umbrella would include the rights asserted in the Magna Carta, for example, or in the English Bill of Rights, or in Virginia’s Declaration of Rights. (Remember the time period that the Declaration was written). “Pursuit of Happiness” includes property, but encompasses much more. “Pursuit of Happiness” means an individual should be able to freely exercise all his rights in order to live his life to its full potential. That “full potential” includes the ownership of property and the fruits of one’s labor, mind, and personality (all that which makes a person a unique “individual”). “Property” was too narrow a term for Jefferson. Now, just as the individual has the rights to Life, Liberty, and Property, he also has the equal right to protect them. This right of self-protection and self-preservation is also a natural right. Samuel Adams summed it best: “Among the natural rights of the colonists are these: First a right to life, secondly to liberty, and thirdly to property; together with the right to defend them in the best manner they can.”

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed” is another important principle. It is a critical and basic tenet of our form of government. First it states unequivocally that the primary role of government is “to secure these rights.” In other words, in the grand scheme of things, individual rights are supreme over the authority of the State (ie, government). The primary role of government, and the motivating force behind the formation of government, is to secure the inalienable rights, endowed by our Creator (Nature), of each individual. This means that government is to be ideally limited to the role of a policeman, a judge, a prison warden, and a military force. Furthermore, this provision explains that government has no powers of its own, but only “derives” its powers from individuals consenting to transfer power to it. This is where the doctrine of Individual Sovereignty comes from. In a state of Nature, man has full sovereign power to govern himself – to provide for himself, to protect himself, to think and act as he wants. He is responsible for himself and his conduct. What is especially critical about this principle of “deriving powers from the consent of the governed” is that power delegated by the people is always “temporary” in nature. The people can always re-assume their sovereign power – their right to govern themselves.

Having told us the proper function of government, Jefferson then tells us what gives cause to changing it: “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.”

The first thing to note is that governments are always “temporary.” Government exists at the whim of the people and have no right in and of itself to its own existence or longevity. Government is a “creation.” It is not a natural institution. Because is arises by the “consent of the governed,” it is a product of compact. Compacts have elements of contract law and agency law. The second thing to note is the Declaration acknowledges that individuals have the RIGHT to establish their government to effect THEIR happiness and their safety. When government ceases to serve those purposes, then individuals are well within their natural right to abolish that government and establish another.

The Declaration goes one step further and challenges individuals to be vigilante of their rights and critical of their government. “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, 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.”

How will a people know for sure when it is time to “abolish” their government? Or how will they know when it is time to dissolve political bonds that tie them to another; that is, how will they know when it is time to secede from another political body? The Declaration, in that last sentence, tells us: “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.”

And that line, as Jefferson will explain in the section that follows, sums up the position of the Colonies. In that section, Jefferson sets out to make the case that the conduct of the King is a history of abuses and usurpations. Historical precedents such as the Magna Carta and the Bill of Rights 1689 had established the principle that the King was not to interfere with the rights of Englishmen, as held by the people. The list of grievances essentially all stem from a refusal by the King and by Parliament to recognize these rights in the colonists and instead, to abuse their power by interfering, burdening, and evening denying those rights. Jefferson lists 27 grievances against King George III – 27 instances where he violated the rights of the colonists – which he, Jefferson, (and the Second Continental Congress, as evidenced by its adoption of the Declaration of Independence on July 4, 1776) believe evidences a design to reduce them under an absolute Despotism (tyranny).

What are some of these grievances?

The first, for example, reads: “He has refused his Assent to Laws, the most wholesome and necessary for the public good.” With this grievance, Jefferson points to the fact that the King repeatedly refused to ratify Colonial legislation, thus tacitly refusing to ignore their right of colonial self-government.

Grievance ten reads: “He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.” One can look at the Stamp Act to see what Jefferson means by this item. After the passage of the Stamp Act, stamp distributors were appointed in every considerable town. In 1766 and 1767, acts for the collection of duties created “swarms of officers,” all of whom received high salaries; and when in 1768, admiralty and vice admiralty courts were established on a new basis, an increase in the number of officers was made. The high salaries and extensive perquisites of all of these, were paid with the people’s money, and thus “swarms of officers” “eat out their substance.”

Grievance eleven reads: “He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.” This item refers to two notable situations – namely, the British troops kept in America following the war with France (Seven Years War) and then following the Boston Tea Party, the King established martial law in Massachusetts under General Gage. A subsequent grievance refers to the quartering of British troops in and among the colonies. One of the Intolerable Acts of 1774 was the Quartering Act, a particularly offensive law to the colonists.

After the treaty of peace with France, in 1763, Great Britain left quite a large number of troops in America, and required the colonists to contribute to their support. There was no use for this standing army, except to repress the growing spirit of Republicanism among the colonists, and to enforce compliance with taxation laws. The presence of troops was always a cause of complaint; and when, finally, the colonists boldly opposed the unjust measures of the British government, armies were sent hither to awe the people into submission. It was one of those “standing armies” kept here “without the consent of the Legislature,” against which the patriots at Lexington, and Concord, and Bunker Hill so manfully battled in 1775.

Of course, Jefferson included a grievance addressing an early, but repeated, grievance – that of “taxation without representation,” The grievance reads: “For imposing Taxes on us without our Consent:”

One should read all the grievances. Some we are familiar with from our study of American History in grade school but others would absolutely shock us with their severity.

In the last paragraph of the Declaration, Jefferson will finally make the case that because of this evil design, the Colonies have a right and a duty to dissolve their political bonds with the King.

The last paragraph reads:

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.

The Declaration of Independence ends with these powerful words: “For the support of this Declaration, we mutually pledge to each other our Lives, our Fortunes, and our Sacred Honor.” We can never forget that the Declaration was a treasonous document, which, if the British had won the war, would have sealed the fate of each of its signers and earned them a date with a hangman’s noose. But they believed in their cause. They believed in the words they wrote in that document and they believed in their case against the King. And they were willing to risk it all.

Signer Benjamin Rush (of Pennsylvania) wrote: “Do you recollect the pensive and awful silence which pervaded the house when we were called up, one after another, to the table of the President of Congress to subscribe what was believed by many at that time to be our own death warrants?”

After signing his name in a large flowing style, it is rumored that John Hancock’s full response was this: “There! His Majesty can now read my name without his spectacles. And he can double the reward on my head!” Benjamin Franklin, insisting that every single delegate sign the Declaration of Independence, said: “We must all hang together or surely we shall all hang separately.” The large, burly Virginian, Benjamin Harrison, turned to the pipsqueak from Massachusetts, Elbridge Gerry, and joked: “I will have a great advantage over you, Mr. Gerry, when we are all hung for what we are now doing. From the size and weight of my body I shall die in a few minutes, but from the lightness of your body, you will dance in the air an hour or two before you are dead.”

One day after the Declaration was adopted by the delegates to the Second Continental Congress, John Adams wrote home to his wife Abagail: “I am well aware of the toil and blood and treasure, that it will cost us to maintain this Declaration, and support and defend these States. Yet through all the gloom I can see the rays of ravishing light and glory. I can see that the End is more than worth all the means. And that posterity will triumph in that day’s transaction.”

In a speech he gave on the 150th Anniversary of the Declaration of Independence (5 July 1926), Calvin Coolidge reflected:

Great ideas do not burst upon the world unannounced. They are reached by a gradual development over a length of time usually proportionate to their importance. This is especially true of the principles laid down in the Declaration of Independence. Three very definite propositions were set out in its preamble regarding the nature of mankind and therefore of government. These were the doctrine that all men are created equal, that they are endowed with certain inalienable rights, and that therefore the source of the just powers of government must be derived from the consent of the governed. If no one is to be accounted as born into a superior station, if there is to be no ruling class, and if all possess rights which can neither be bartered away nor taken from them by any earthly power, it follows as a matter of course that the practical authority of the Government has to rest on the consent of the governed. While these principles were not altogether new in political action, and were very far from new in political speculation, they had never been assembled before and declared in such a combination… In its main features the Declaration of Independence is a great spiritual document. It is a declaration not of material but of spiritual conceptions. Equality, liberty, popular sovereignty, the rights of man — these are not elements which we can see and touch. They are ideals. They have their source and their roots in the religious convictions. They belong to the unseen world. Unless the faith of the American people in these religious convictions is to endure, the principles of our Declaration will perish. We cannot continue to enjoy the result if we neglect and abandon the cause… If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final.

By a stroke of remarkable coincidence, both Thomas Jefferson and John Adams died on the same day – the fiftieth anniversary of the adoption of the Declaration of Independence, July 4, 1826. Jefferson preceded Adams in death by five hours.

When I think about Independence Day, I think of our magnificent story. I think about the uncompromising determination of people to live free and the eternal vigilance it took to finally secure lasting boundaries on government. I think about the ways the British and then the colonists expressed their discontent with the King and the many ways they sought to exert their rights, and how the many efforts culminated in their most famous expression in the American Declaration of Independence. I think about how our Founding Fathers brilliantly turned government on its head – transforming a system of government based on the Divine Right of Kings to a system predicated on Individual Sovereignty. I think of a continuum of a story that began in 1215 with a stand-off on the meadow at Runnymede in order to secure a promise from an arrogant and ambitious king that ended with a document signed by 56 delegates assembled together from 13 separate states on July 4. The continent may have changed, but man’s yearning to be free did not.

Now, as we all know, a country is a physical location inhabited by a body politic. Principles are embraced by people and not by geography, and so liberty and independence is a spirit that must live in all of us. If it doesn’t, then we suffer oppression together. As Machiavelli once said: “It is just as difficult and dangerous to try to free a people that wants to remain servile as it is to enslave a people that wants to remain free.” The Declaration embraces our revolutionary spirit, and God help us when our country has the spirit of an aging grandmother. The key is to always keep that revolutionary spirit. And maybe that’s what Independence Day is all about…. to reflect on our history and to rekindle that spirit every year.

In conclusion, I would like to implore that on this Independence Day and on every Independence Day, that we remember the advice that was once given to us by James Madison: “The people of the U.S. owe their Independence and their liberty to the wisdom of descrying in the minute tax of 3 pence on tea, the magnitude of the evil comprised in the precedent. Let them exert the same wisdom, in watching against every evil lurking under plausible disguises, and growing up from small beginnings.”

 
References:
Diane Rufino, “Independence Day: The Story of Us,” Diane’s Blogsite (www.forloveofgodandcountry), July 3, 2016. Referenced at: https://forloveofgodandcountry.com/2016/07/08/independence-day-the-story-of-us/

Mike Maharrey, “The Declaration of Independence Birthed 13 Sovereign Nations,” Tenth Amendment Center, July 3, 2019. Referenced at: https://tenthamendmentcenter.com/2019/07/03/the-declaration-of-independence-birthed-13-sovereign-nations/

“Breaking Down the Declaration of Independence,” SAISD Social Studies Department – https://www.saisd.net/admin/curric/sstudies/resources/teacher_zone/Hands_On/gov_econ/pdf/ho_us1_breaking_doi.pdf

The List of Grievances in the Declaration of Independence, Wikipedia. https://en.wikipedia.org/wiki/Grievances_of_the_United_States_Declaration_of_Independence

Brion McClanahan, “Rethinking the Declaration of Independence,” Abbeville Institute, July 4, 2016. Referenced at : http://www.abbevilleinstitute.org/blog/rethinking-the-declaration-of-independence/

Dr. Almon Leroy Way, Jr. (Professor of Political Science), “The American System of Government: The American Constitutional System – English Origins (1066-1558),” Cyberland University of North Carolina.
Referenced at:  http://www.proconservative.net/CUNAPolSci201PartFourB.shtml [In-depth study of the Magna Carta]

The Petition of Right of 1628  –  http://study.com/academy/lesson/petition-of-right-of-1628-definition-summary.html

The English Bill of Rights of 1689  –  http://avalon.law.yale.edu/17th_century/england.asp

The Grand Remonstrance  –  http://www.constitution.org/eng/conpur043.htm

The Declaration and Resolves  –  http://avalon.law.yale.edu/18th_century/resolves.asp

Patrick Henry’s Speech of March 23, 1775 – https://www.history.org/almanack/life/politics/giveme.cfm

Halifax Resolves  –  http://www.learnnc.org/lp/editions/nchist-revolution/4328

Preamble and Resolution of the Virginia Convention of May 15, 1776 – http://avalon.law.yale.edu/18th_century/const02.asp

The Lee Resolutions  –  http://avalon.law.yale.edu/18th_century/lee.asp

“Boiling It Down, This Is What You’ve Said,” Mark America, October 15, 2011. Referenced at:  http://markamerica.com/2011/10/15/boiling-it-down-this-is-what-youve-said/

Winston Churchill, “The Sinews of Peace”, address at Westminster College, Fulton, Missouri (March 5, 1946); in Robert Rhodes James, ed., Winston S. Churchill: His Complete Speeches, 1897–1963 (1974), vol. 7, p. 7288.

Calvin Coolidge, speech on the Occasion of the 150th Anniversary of the Declaration of Independence (July 5, 1926).

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SECESSION: Both a RIGHT and a REMEDY

SECESSION - constitution ripped in half

by Diane Rufino, September 23, 2018

Gene Kizer Jr. is a brilliant historian. He has written an excellent account of the causes of the War of Northern Aggression (aka, the War to Prevent Southern Independence; aka, the War Between the States; aka, the Civil War), in his book, Slavery Was Not the Cause of the War Between the States, and he has written some excellent articles as well, including on the right of secession. In his book and in his articles, he makes the case (most effectively) that secession was a reserved right of the states and that it was, in fact, exercised legitimately.

At the heart of the “Civil War” (which is, by the way, a most incorrect term for the conflict) was the right of the southern states to secede from the Union. That is, the lens through which we should look at, and assess, the war is whether Abraham Lincoln and his administration pursued a legal war by asserting that the eleven southern states that seceded from the Union had no constitutional right to do so.

The answer is that the southern states absolutely had the right to dissolve their union with the northern and more western states and their political bond to the federal government. Every state had and continues to have that fundamental right. Acknowledging this and therefore acknowledging that Lincoln incorrectly assessed the situation, he unconstitutionally assumed powers that were not granted to him, nor to the federal government in general.

Secession is a viable option to each state under three essential theories, and perhaps even others:

(1)  Each state has an essential right to determine its own form of government, under the natural right of self-determination. This natural right is articulated clearly in the second paragraph of the Declaration of Independence (“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…”), and in fact, forms the basis for the decision of the thirteen American states to secede from Great Britain. The first paragraph of the Declaration makes this point quite clear:

       When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

The Constitution does not prohibit nor limit the natural right of secession, even in Article I, Section 9 which is the provision that puts limits on the sovereign power of the states, but rather includes the very powerful and declaratory Tenth Amendment which states “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.” In other words, because the Constitution did not expressly prohibit the right of secession, that right is reserved (continues to be reserved) to the states. And to make it absolutely clear that the right of secession is a state right, the states demanded that the Tenth Amendment be added to the Constitution as a restatement of that fact.

So, the states have the RIGHT to secede.

(2)  Secession is also a REMEDY, reserved to the states by the very nature of the Constitution. The Constitution is a social compact, which essentially is a contract, or an agreement, among the members of a society to cooperate for social benefits, such as mutual protection and to regulate relations among members. For example, a typical social compact calls for the sacrificing of some individual freedom for state protection and other public services. Social Compact was a theory articulated in the 16th, 17th, and 18th centuries by philosophers such as John Locke, Thomas Hobbes, and Jean-Jacques Rousseau, as a means of explaining the origin of government and how an organized society is thus brought into being.

As we all know, every contract and every agreement can be broken. There may be consequences, usually monetary, but no contract is absolutely unbreakable. A contract or agreement can be broken by a breach of obligations (for example, a person doesn’t make his obligatory mortgage payments; the lending bank can then foreclose under a breach of contract) which is an affirmative breach, it can be broken because the purpose for the contract has been eliminated (for example, an entertainer is contracted to perform once monthly at a Las Vegas casino but the casino is destroyed in a fire), or it can be broken simply because a party wants out. Contract remedies are essentially designed to put the non-breaching party in a position had the breach not occurred  (for example, a contractor quits a job in the middle of building an extension on a house; the contractor must pay to have the job finished, by another contractor) and they usually involve monetary damages. Sometimes, however, money cannot make the non-breaching party “whole” (put them back into a position had the breach not occurred) and a court will order “specific performance,” which means that the breaching party will be compelled to perform some service by the court.

When the states were debating the Constitution in their Ratifying Conventions, three states (Virginia, New York, and Rhode Island) included “Resumption Clauses” as specific conditions upon their ratification – clauses asserting the right to secede from the Union at a future time.

Virginia’s Ratification document (June 26, 1788) included this Resumption Clause: “The People of Virginia declare and make known that the 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.”

New York’s Ratification document (July 26, 1788) included this Resumption Clause: “That the Powers of Government may be resumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same.”

Rhode Island’s Ratification document (May 29, 1790) included this Resumption Clause: “That the powers of government may be resumed by the people, whensoever it shall become necessary to their happiness: That the rights of the States respectively to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same.”

Essentially, these clauses reserved the right of the state to leave the Union and resume all their sovereign powers and rights. With these clauses, the states simply put into writing a right they thought naturally belonged to their respective states. In fact, the right of secession was understood and agreed to by the other states, including George Washington who presided over the Constitutional Convention and served as a delegate from Virginia.

These clauses, because they were included in the ratification, and because they were accepted when the states formed into the Union, became applicable to every state that joined the Union. The fact that the states expressly reserved the right to secede (for no specific reason other than it may be “necessary to their happiness…”) shatters the notion and the argument by Abraham Lincoln in 1860 that the Union was intended to be perpetual and no state could secede.

Reserving the right to secede is an express reservation of the part of each state to un-make its agreement to join the Union. It is an express right to terminate its association with the compact (the Constitution), and thereby no longer be a party to the Union. Put simply, it is an express right of termination.

In contract law, the express right of termination is referred to as a Right of Rescission. Since it is a right to un-do the contract (to get out of the contract), it is a contract remedy.

Thus, the states have reserved secession as a REMEDY. (As a remedy to leave the Union, or secede from the Union) at some point when they deem it necessary for their happiness.

Rescission is defined as the unmaking of a contract between parties or the unwinding of a transaction. As mentioned above, it applies where a party to a contract exercises a Right of Termination that he or she had expressly included, or reserved, in that contract. In contract law, it is sometimes said that the party has included (or exercised) a right to rescind the contract. It is exercised in order to bring the party, as far as possible, back to the position in which it was before entering into the particular contract (the status quo ante). If the contract is between two parties, then both parties go back to the position they enjoyed before entering into the contract. If the contract – or compact – is between many parties, then technically only the party exercising the right of rescission is relieved from the compact; the others are free to retain the force of contract/compact.

If there is any doubt as to the intent of Virginia, for example, to take its Resumption Clause seriously, look at the language it used in its Ordinance of Secession, which it adopted in Convention on April 17, 1861 to secede from the Union:

AN ORDINANCE to Repeal the ratification of the Constitution of the United States of America, by the State of Virginia, and to resume all the rights and powers granted under said Constitution:

The people of Virginia, in their ratification of the Constitution of the United States of America, adopted by them in Convention, on the 25th day of June, in the year of our Lord one thousand seven hundred and eight-eight, having declared that the powers granted them under the said Constitution were derived from the people of the United States, and might be resumed whensoever the same should be perverted to their injury and oppression, and the Federal Government having perverted said powers, not only to the injury of the people of Virginia, but to the oppression of the Southern slaveholding States.

Now, therefore, we, the people of Virginia, do declare and ordain that the Ordinance adopted by the people of this State in Convention, on the twenty-fifth day of June, in the year of our Lord one thousand seven hundred and seventy-eight, whereby the Constitution of the United States of America was ratified, and all acts of the General Assembly of this State, ratifying or adopting amendments to said Constitution, are hereby repealed and abrogated; that the union between the State of Virginia and the other States under the Constitution aforesaid, is hereby dissolved, and that the State of Virginia is in the full possession and exercise of all the rights of sovereignty which belong to a free and independent State. And they do further declare that the said Constitution of the United State of America is no longer binding on any of the citizens of this State.

This Ordinance shall take effect and be an act of this day when ratified by a majority of the votes of the people of this State, cast at a poll to be taken thereon on the fourth Thursday in May next, in pursuance of a schedule hereafter to be enacted.

Done in Convention, in the city of Richmond, on the seventeenth day of April, in the year of our Lord one thousand eight hundred and sixty-one, and in the eighty-fifth year of the Commonwealth of Virginia

(3)  Secession, or the termination of the agreement to remain in the Union, is a viable contract/compact remedy under breach theory.  When one signing member to the agreement violates or breaches its obligations, then the other signing member (or any of a number of other signing members) are relieved of their obligations under the agreement. In other words, the breach by one party, especially if material in nature (that is, if it is enough to fundamentally alter the relationship of the states in relation to one another or to affect the ability of the federal/common government to serve all states in a fair, equal, and impartial manner) is enough to invalidate the entire agreement altogether, thus allowing the other party, or other parties, to walk away and also allowing remaining members to continue to enforce the agreement if they so desire.

In the case of the Southern states, they seceded over several material breaches of the compact – several violations by the Northern states of their obligations under the Constitution:

(a)  They believed the Protective Tariff was an unfair and confiscatory tax on the South, almost completely discriminatory in nature and punitive as well. It was no secret that the North had a great disdain for the South and its values and its “simple” agricultural lifestyle (and even its use of slavery). According to the Southern states (John C. Calhoun of South Carolina articulated it probably better than most), the federal government was a common government that was created and intended to serve each state equally. The North knew full well that the protective tariffs (1828 and 1832) were born almost exclusively and to their detriment, by the southern states. But the Northern states, and particularly northern businesses, benefitted far too greatly from the confiscation of those tariff revenues (more than half of the revenue was funneled almost directly from the South to the North) to ever consider giving them up. In 1860, Abraham Lincoln ran on a platform of increasing and the protective tariff to its highest level ever. That platform issue, together with his promise to prohibit the spread of slavery into new territories and future states, were enough for all of the Southern states to refuse to even put his name on the ballot.  In fact, the Morrill Tariff was passed by the US Congress and signed into law by President James Buchanan in 1861, just two days before he left office and Lincoln was inaugurated. Lincoln kept his promise to enforce that tariff.

If the federal government was not serving the states equally, and if it had merely become a vehicle hijacked by one region of the country to serve its own interests (at the great expense of the other region), then the states of the North had breached their obligations and the very purpose of establishing the Union had become frustrated. The South believed the tariff issue constituted a material breach and thus gave them ample reason (under the Declaration of Independence – “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…”) to leave the Union.

(b)  Lincoln’s inauguration as a purely sectarian president was of great concern to the South. His interests and agenda were solely to further those of the North.  His promise to prohibit the spread of slavery to any new territory and any new state was a violation of the US Constitution.  Article IV guarantees every new state to the Union the right to be admitted on the same footing as every other state. Slavery, unfortunately, was protected under the Constitution, and therefore, every new state added to the Union would be subject to its same terms and conditions. The Southern states believed that Lincoln’s government was acting in abuse of the Constitution and because the North supported his agenda, those states, again, breached the terms of the compact and thus gave the states of the South reason to dissolve their bonds with the Union.

(c)  The Northern states routinely refused to enforce the Fugitive Slave Laws, which were laws enacted pursuant to the Fugitive Slave Clause of the US Constitution (Article IV, Section 2, clause 3). To the South, the Fugitive Slave Clause was a valued provision in the Constitution.  The laws were widely ignored or frustrated (were “nullified”) by states, localities, and even by individuals (such as those who organized into mobs in order to free runaway slaves from local prisons).  The states of the South took notice and in fact, in some of the ordinances of secession, they cited the refusal of the North to comply with the Fugitive Slave Laws, as well as its support of violence to stir slaves to revolt (such as the John Brown massacre; Brown was vaulted to martyr status by Northern members of Congress).

The Fugitive Slave Clause of the US Constitution (aka, the Slave Clause or the Fugitives From Labor Clause) required that a “person held to service or labour” (usually a slave, apprentice, or indentured servant) who flees to another state to be returned to the owner in the state from which that person escaped. The provision was rendered moot with the Thirteenth Amendment, which abolished slavery. The exact text of the Fugitive Slave Clause read: “No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.”  The North refused to help enforce the Fugitive Slave Laws, claiming that it has no obligation as a state, to do so. The Laws were federal laws and if the federal government intended for them to be enforced, it was going to have to do so itself – with its own agents, its own courts, and its own prisons. The states and localities refused to assist – they would not use their officers, their prisons, any state personnel, or even any state court to uphold the laws and return runaway slaves back to their owners.

The states of the South believed the states of the North had a compact (constitutional) obligation to honor its provisions, including those it didn’t approve of.  Because the North refused to enforce the Fugitive Slave Laws and frustrated the Fugitive Slave Clause of Article IV, which was included for the benefit of the South, the Southern states concluded that the Northern states committed a material breach of the terms of the compact and hence, they were justified in leaving the Union.

One should read Gene Kizer Jr’s article “The Right of Secession” (link provided below). It provides an excellent overview of the legality of secession, in particular, as a right endowed and reserved to each state. Then one should read his most excellent book, Slavery Was Not the Cause of the War Between the States.

 

References:

Stephen C. Neff, “Secession and Breach of Compact: The Law of Nature Meets the United States Constitution,” Akron Law Review: Vol. 45: Issue 2, Article 4 (June 2015).  Referenced at:  https://ideaexchange.uakron.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1067&context=akronlawreview

Virginia’s Ordinance of Virginia (April 17, 1861) – http://www.nellaware.com/blog/virginia-ordinance-of-secession.html\

Gene Kizer Jr, “The Right of Secession,” Bonnie Blue Publishing.  Referenced at:  http://www.bonniebluepublishing.com/The%20Right%20of%20Secession-FULL%20PAGE%20FORMAT-USE.htm

Gene Kizer Jr., Slavery Was Not the Cause of the War Between the States;  Charleston Athenaeum Press (November 1, 2014).

Gene Kizer Jr., “Barbarians At the Gate,” Abbeville Institute, March 8, 2018.  Referenced at:  https://www.abbevilleinstitute.org/blog/the-barbarians-at-the-gates/

The Right of Secession, as Reserved by the States in Their Ratification of the US Constitution

SECESSION - We Did it Once Let's Do it Twice

by Diane Rufino, June 1, 2018

Louisiana voted to secede from the Union on January 26, 1861. Shortly thereafter, her senators, Judah P. Benjamin and John Slidell, resigned their positions in the US Senate. In his FAREWELL ADDRESS to the Senate, on February 5, 1861, Senator Benjamin expressed perhaps the strongest argument for the Right of Secession. He said:

“The rights of Louisiana as a sovereign state are those of Virginia – no more, no less. Let those who deny her [Louisiana’s] right to resume delegated powers try to successfully refuse the claim of Virginia to the same right, in spite of her [Virginia’s] expressed reservation made and notified to her sister states when she consented to enter the Union. And sir, permit me to say that, of all the causes which justify the action of the Southern States, I know none of greater gravity and more alarming magnitude than that now developed of the denial of the right of secession. A pretension so monstrous as that which perverts a restricted agency [federal government], constituted by sovereign states for common purposes, into the unlimited despotism of the majority, and denies all legitimate escape from such despotism, when powers not delegated are usurped, converts the whole constitutional fabric into the secure abode of lawless tyranny, and degrades sovereign states into provincial dependencies.”

To deny the Right of Secession, as President Abraham Lincoln did (although only AFTER he became president), as powerful orator Senator Daniel Webster did (although only AFTER he realized the financial ruin that secession would reap on northern states), and as too many liberal elites and too many Americans (because of indoctrination in our public school system and at our liberal universities) believe today is to condemn Americans ultimately to tyranny, to subjugation, to an existence far different from the one that the Declaration of Independence and the Bill of Rights had once promised, to the loss of liberty, to the control by political parties (not political movements, which are good and are true expressions of democracy), and to the rule by political elites. In other words, we would have to acknowledge that we are not a free nation anymore, that we are not a free people. We as a country and as a people wear the veneer of freedom and liberty.  The experiment started by those far wiser than any alive today, which established for us in America, and indeed for the rest of the world, the right of self-determination and the right of self-government, and which was predicated on the grand notion – the very revolutionary notion – that those rights were far more important than the right of any government to seek to cement its existence, would be dead. If we give up on our right to secede, then we have lost that precious system and that noble ideal. That noble ideal is what guarantees our freedom and our liberty. If we abandon that right to secede, we are no different from the system we initially separated from, Great Britain, where government was – and still is – superior to the people.

To be clear, the fundamental principle guiding our independence was the right of a people to secede from a political body, exercising the right of self-determination and the right of a people to establish their own government – one that serves their interests and concerns best. We cannot allow the proclamations of one leader, Abraham Lincoln, who did so for purely political purposes (explained historically, accurately, and in great detail in Gene Kizer Jr’s book, SLAVERY WAS NOT THE CAUSE OF THE WAR BETWEEN THE STATES, as well as in Albert Taylor Bledsoe’s book, IS JEFFERSON DAVIS A TRAITOR?; references to both provided below) to destroy this great principle of independence and freedom.

It is important to understand that secession was a right implicit with every sovereign body politic and a right expressly and explicitly reserved to the States under the terms of the ratification of the Constitution:

First of all, let’s look at these two very powerful arguments:  [Taken from Mr. Kizer’s article “The Right of Secession,” Referenced at:  http://www.bonniebluepublishing.com/The%20Right%20of%20Secession.htm ]

(1).  There had to be a specific constitutional prohibition on secession for it to be illegal. Conversely, there did not have to be a specific constitutional affirmation of the right of secession for it to be legal. Why? Because of the 10th Amendment to the United States Constitution, which states: “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.”  This amendment states nothing new, but is merely a restatement, as the Preamble to the Bill of Rights explains. It is a restatement of the fact that the federal government can govern ONLY as to the express (and that is made clear also in the Preamble) powers granted/delegated to it by the Constitution, Articles I-III, and States are prohibited from doing certain things ONLY if it states so expressly therein. The power to prevent secession is NOT granted to the federal government and the right to secede is NOT prohibited to the States under our Constitution.

Aside from the fact that there was (and is) no constitution prohibition on secession, there was (and is) also NO constitutional sanctioning of any kind of federal coercion to force a State to obey a federal law when to do so would act to perpetrate an act of war on the offending state by the other states. After all, the federal government was established as a common agent for all States, tasked with serving the interests of each equally.

While we are talking out what the federal government can and cannot do, there is also NO constitutional provision, nor any moral foundation, for the federal government to coerce one or more States to invade or otherwise inflict armed conflict against any other State or States. Again, each State is an equal beneficiary of the agency provided by the federal government.

(2).  The arguments for the right of secession are indeed unequivocal. There is the constitutional right based on the Compact Theory, and the revolutionary right based on the idea that a free people have the right to change their government anytime they see fit. Compact Theory is based on Natural Law – that people, in deciding to live together in communities, decide for themselves the form of government to establish laws for their mutual safety, security, and peace. They decide for themselves the government that will best establish laws for their ordered existence. Compacts are the vehicle by which the people form that government and delegate powers to it. It is a form of Contract. The Compact Theory views the Constitution as a legal agreement between the states – a compact – and if any one state violates the compact, then the entire agreement becomes null and void. Northern states unquestionably violated the Constitution on a number of grounds including unconstitutional Personal Liberty Laws on their books, as well as by deliberately harboring fugitives from justice by protecting the sons of John Brown who were wanted by Virginia for murder at Harpers Ferry. Northern states also made a mockery of the Constitution’s Preamble, which states clearly that the Constitution was established to “insure domestic Tranquility” and “promote the general Welfare.” Certain prominent Northern leaders with the acquiescence of states like Massachusetts were utterly at war with the South and doing everything they could to destroy the domestic tranquility of Southern states by encouraging slaves to murder white people, poison wells, destroy property and commit other acts of rapine. John Brown himself had been encouraged and financed in the North.

The revolutionary right of secession is based on the Declaration of Independence and the philosophy of Thomas Jefferson and John Locke, “that whenever any form of government becomes destructive of the ends for which it was established, it is the right of the people to alter or abolish it, and to institute new government, ….. ”

These words come directly from the Declaration of Independence. This passage was also used, verbatim, in South Carolina’s Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union. A similar sentiment was expressed by Abraham Lincoln in 1847 on the floor of the United States House of Representatives:

“Any people, anywhere, being inclined and having the power, have the right to rise up and shake off the existing government, and form a new one that suits them better. This is a most valuable, a most sacred right, a right which we hope and believe is to liberate the world.”

And now let’s look at the strongest piece of evidence, of which Senator Judah P. Benjamin referenced in his farewell speech above (“Virginia’s express reservation”):

Three of the original thirteen states were particularly skeptical of the government that the newly-drafted Constitution created and so they ratified it only conditionally. These three states were Virginia and New York, the great powerhouses of the New World, and Rhode Island (tiny, but very liberty-minded). In their ratification documents, adopted at their Ratification Conventions, they specifically and carefully reserved the right of secession. These are referred to as the “Resumption Clauses” or “Resumptive Clauses,” and they are exceedingly important to understand this topic. I attached Virginia’s ratification document at the end of this article. You will see that Virginia conditioned her ratification on several things, including the Right to Secede and on the addition of a Bill of Rights (for which she made a number of suggestions).

Since the other states, which had unconditionally ratified the Constitution, consented to Virginia’s conditional ratification, they “ostensibly assented to the principle that Virginia permissibly retained the right to secede.”  This is an essential element of contract law, of which compact theory follows. All negotiations, all conditions, all limitations, all reservations, etc become part of the compact agreement which affects all parties, as long as those negotiations, conditions, limitations, reservations, etc are not rejected by any of the other signing parties. With the additional acceptance of New York’s and Rhode Island’s conditions (their Resumption Clauses; their right to secede), the existing states of the Union clearly, albeit tacitly, accepted the doctrine of secession. Again, this is a matter of contract law, the most firmly-entrenched area of law. Furthermore, according to the Constitution, all States that joined the Union after the first thirteen also had the right of secession since new states entered on an equal footing with the exact same rights as the existing states.

Virginia was the first state to state explicitly that she would only ratify the Constitution as long as she reserved the right to leave the Union so created by it.  If Virginia didn’t ratify the Constitution, it was very likely that New York, Rhode Island, and certainly North Carolina also would not. The plan for “a more perfect Union” would be defeated. In her “Ratification of the Constitution by the State of Virginia; June 26, 1788,” the state of Virginia included this express provision:  “Do in the name and in behalf of the People of Virginia declare and make known that the 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.

To reinforce how strongly Virginia valued that Clause one simply has to look at her Ordinance of Secession from the Union (April 17, 1861). She used the exact wording of her conditional ratification of the US to sever her political bonds with the federal government and to resume all her sovereign powers and rights to determine a new and more favorable government for her people.

A month later, on July 26, 1788, New York conditionally ratified the Constitution. In the ratification declaration adopted at her Convention, New York wrote:

“That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution.”

And then finally, almost two years later, on May 29, 1790, Rhode Island asserted her own conditional ratification:

“That the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness:- That the rights of the States respectively, to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same; and that those clauses in the said constitution which declare that Congress shall not have or exercise certain powers, do not imply, that Congress is entitled to any powers not given by the said constitution, but such clauses are to be construed as exceptions to certain specified powers, or as inserted merely for greater caution.”

Historian Dave Benner explains in his article “Can States Secede from the United States?” (IntellectualTakeOut.org, March 7, 2017):

       During the ratification debates, many figures firmly challenged the suggestion that coercive force could be used to obligate a state’s membership in the union. Melancton Smith of New York suggested that such coercion would be an anathema to the cause of liberty: “Can it, I say, be imagined, that in such a case, they would make war on a sister state?”

       He ridiculed the notion, declaring that “the idea is preposterous and chimerical.” George Mason, known today as the “Father of the Bill of Rights,” also rejected the assumption that war would befall a seceding state. Answering an inquiry regarding whether the government could “use military force to compel the observance of a social compact,” Mason scoffed at such a prospect, declaring that it would be “destructive to the rights of the people.”

Respected professor, author, and speaker (and founder of the Abbeville Institute), Donald W. Livingston noted, in his article “The Secession Tradition in America,” the conclusion offered by famed historian and political scientist Alexis de Tocqueville, who spent several years in America studying its political system and societies and who studied the US Constitution on the right of secession. De Tocqueville wrote: “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; and the Federal Government would have no means of maintaining its claims directly, either by force or by right.”

Abraham Lincoln intentionally re-characterized the Constitution in order to force the Southern States back into the Union, where its money could continue to fund the federal government and could continue to enrich the Northern states. He also sought to force the Southern States back into the Union because under the Confederate Constitution, protective tariffs (the lifeblood of northern industry) were prohibited and it would interact with other countries on a policy of Free Trade. Free trade would have signed the death of the Union because then only people in the North would have purchased its products and its industry and indeed its economy would have crashed. To that end, Lincoln denied the right of secession and characterized the Constitution as creating a “perpetual union,” which was just plain hogwash. Every compact, just like every contract, can be broken. He said the Southern States were “in rebellion against the United States” even though they made it exceedingly clear that they merely wanted a peaceful separation, and to remain on good terms with their former government. In order to prevent other States (the so-called “border States” and others that were clearly more pro-South than pro-North) from leaving the Union and joining the Confederacy, he sent in the Army of the United States to put them under martial law. Politicians sympathetic to the Confederate States were forcibly removed from office (and many jailed) and their state governments fundamentally changed to force them to be loyal to Lincoln. This was in violation of Section 4 of Article IV of the Constitution (The Guarantee Clause), which states:

The United States shall guarantee to every State in this Union a Republican Form of Government, and [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.”

By removing duly-elected members of State legislatures and altering the governing bodies by force, Lincoln violated the Constitution (just another of the many times he violated the Constitution) and denied the border States the guarantee that the federal government who assure them a republican (the will of the people) form of government. Furthermore, as to all the States, including the border States, the western States (like Kentucky and Missouri), and the Southern States, the Constitution guaranteed them protection AGAINST invasion and was not a license for Lincoln to be the invader.

 

References:

Gene Kizer Jr, “The Right of Secession,” Referenced at:  http://www.bonniebluepublishing.com/The%20Right%20of%20Secession.htm

Gene Kizer Jr, Slavery Was Not the Cause of the War Between the States, Charleston Athenaeum Press, 2014.  [Chapter: “An Annotated Chronology of the Secession Debate in the South”; pp. 171-72)]  Available as a book, which was the resource I used) and also online at:  http://www.bonniebluepublishing.com/index.htm

Albert Taylor Bledsoe, Is Jefferson Davis a Traitor? (1865).  Reprinted by Forgotten Books (2012).  https://www.amazon.com/Davis-Traitor-Secession-Constitutional-Previous/dp/B008TYU1E4

Dave Benner, “Can States Secede from the United States?”, IntellectualTakeOut.org, March 7, 2017. Referenced at: http://www.intellectualtakeout.org/blog/can-states-secede-united-states),

Donald W. Livingston, “The Secession Tradition in America,” 1998.  Referenced at: http://www.ditext.com/livingston/tradition.html

“Ratification of the Constitution by the State of Virginia; June 26, 1788,” The Avalon Project (Yale Law School) – http://avalon.law.yale.edu/18th_century/ratva.asp

 

- 2018 (BEST, gray sweatshirt, Wake Up Call trip)

 

ADDENDUM: 

Ratification of the Constitution by the State of Virginia; June 26, 1788.

Virginia to wit

We the Delegates of the People of Virginia duly elected in pursuance of a recommendation from the General Assembly and now met in Convention having fully and freely investigated and discussed the proceedings of the Federal Convention and being prepared as well as the most mature deliberation hath enabled us to decide thereon Do in the name and in behalf of the People of Virginia declare and make known that the 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 except in those instances in which power is given by the Constitution for those purposes: & that among other essential rights the liberty of Conscience and of the Press cannot be cancelled abridged restrained or modified by any authority of the United States. With these impressions with a solemn appeal to the Searcher of hearts for the purity of our intentions and under the conviction that whatsoever imperfections may exist in the Constitution ought rather to be examined in the mode prescribed therein than to bring the Union into danger by a delay with a hope of obtaining Amendments previous to the Ratification, We the said Delegates in the name and in behalf of the People of Virginia do by these presents assent to and ratify the Constitution recommended on the seventeenth day of September one thousand seven hundred and eighty seven by the Federal Convention for the Government of the United States hereby announcing to all those whom it may concern that the said Constitution is binding upon the said People according to an authentic Copy hereto annexed in the Words following; .

Done in Convention this twenty Sixth day of June one thousand seven hundred and eighty eight

By Order of the Convention

EDMUND PENDLETON, President  [SEAL.]

Virginia towit:

Subsequent Amendments agreed to in Convention as necessary to the proposed Constitution of Government for the United States, recommended to the consideration of the Congress which shall first assemble under the said Constitution to be acted upon according to the mode prescribed in the fifth article thereof:

That there be a Declaration or Bill of Rights asserting and securing from encroachment the essential and unalienable Rights of the People in some such manner as the following;

First, That there are certain natural rights of which men, when they form a social compact cannot deprive or divest their posterity, among which are the enjoyment of life and liberty, with the means of acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.

Second. That all power is naturally vested in and consequently derived from the people; that Magistrates, therefore, are their trustees and agents and at all times amenable to them.

Third, That Government ought to be instituted for the common benefit, protection and security of the People; and that the doctrine of non-resistance against arbitrary power and oppression is absurd slavish, and destructive of the good and happiness of mankind.

Fourth, That no man or set of Men are entitled to exclusive or separate public emoluments or privileges from the community, but in Consideration of public services; which not being descendible, neither ought the offices of Magistrate, Legislator or Judge, or any other public office to be hereditary.

Fifth, That the legislative, executive, and judiciary powers of Government should be separate and distinct, and that the members of the two first may be restrained from oppression by feeling and participating the public burthens, they should, at fixed periods be reduced to a private station, return into the mass of the people; and the vacancies be supplied by certain and regular elections; in which all or any part of the former members to be eligible or ineligible, as the rules of the Constitution of Government, and the laws shall direct.

Sixth, That elections of representatives in the legislature ought to be free and frequent, and all men having sufficient evidence of permanent common interest with and attachment to the Community ought to have the right of suffrage: and no aid, charge, tax or fee can be set, rated, or levied upon the people without their own consent, or that of their representatives so elected, nor can they be bound by any law to which they have not in like manner assented for the public good.

Seventh, That all power of suspending laws or the execution of laws by any authority, without the consent of the representatives of the people in the legislature is injurious to their rights, and ought not to be exercised.

Eighth, That in all capital and criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence and be allowed counsel in his favor, and to a fair and speedy trial by an impartial Jury of his vicinage, without whose unanimous consent he cannot be found guilty, (except in the government of the land and naval forces) nor can he be compelled to give evidence against himself.

Ninth. That no freeman ought to be taken, imprisoned, or disseised of his freehold, liberties, privileges or franchises, or outlawed or exiled, or in any manner destroyed or deprived of his life, liberty or property but by the law of the land.

Tenth. That every freeman restrained of his liberty is entitled to a remedy to enquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be denied nor delayed.

Eleventh. That in controversies respecting property, and in suits between man and man, the ancient trial by Jury is one of the greatest Securities to the rights of the people, and ought to remain sacred and inviolable.

Twelfth. That every freeman ought to find a certain remedy by recourse to the laws for all injuries and wrongs he may receive in his person, property or character. He ought to obtain right and justice freely without sale, completely and without denial, promptly and without delay, and that all establishments or regulations contravening these rights, are oppressive and unjust.

Thirteenth, That excessive Bail ought not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Fourteenth, That every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers and his property; all warrants, therefore, to search suspected places, or seize any freeman, his papers or property, without information upon Oath (or affirmation of a person religiously scrupulous of taking an oath) of legal and sufficient cause, are grievous and oppressive; and all general Warrants to search suspected places, or to apprehend any suspected person, without specially naming or describing the place or person, are dangerous and ought not to be granted.

Fifteenth, That the people have a right peaceably to assemble together to consult for the common good, or to instruct their Representatives; and that every freeman has a right to petition or apply to the legislature for redress of grievances.

Sixteenth, That the people have a right to freedom of speech, and of writing and publishing their Sentiments; but the freedom of the press is one of the greatest bulwarks of liberty and ought not to be violated.

Seventeenth, That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defense of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power.

Eighteenth, That no Soldier in time of peace ought to be quartered in any house without the consent of the owner, and in time of war in such manner only as the laws direct.

Nineteenth, That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.

Twentieth, That religion or the duty which we owe to our Creator, and the manner of discharging it can be directed only by reason and conviction, not by force or violence, and therefore all men have an equal, natural and unalienable right to the free exercise of religion according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established by Law in preference to others.

 

AMENDMENTS TO THE BODY OF THE CONSTITUTION

First, That each State in the Union shall respectively retain every power, jurisdiction and right which is not by this Constitution delegated to the Congress of the United States or to the departments of the Federal Government.

Second, That there shall be one representative for every thirty thousand, according to the Enumeration or Census mentioned in the Constitution, until the whole number of representatives amounts to two hundred; after which that number shall be continued or increased as the Congress shall direct, upon the principles fixed by the Constitution by apportioning the Representatives of each State to some greater number of people from time to time as population increases.

Third, When Congress shall lay direct taxes or excises, they shall immediately inform the Executive power of each State of the quota of such state according to the Census herein directed, which is proposed to be thereby raised; And if the Legislature of any State shall pass a law which shall be effectual for raising such quota at the time required by Congress, the taxes and excises laid by Congress shall not be collected, in such State.

Fourth, That the members of the Senate and House of Representatives shall be ineligible to, and incapable of holding, any civil office under the authority of the United States, during the time for which they shall respectively be elected.

Fifth, That the Journals of the proceedings of the Senate and House of Representatives shall be published at least once in every year, except such parts thereof relating to treaties, alliances or military operations, as in their judgment require secrecy.

Sixth, That a regular statement and account of the receipts and expenditures of all public money shall be published at least once in every year.

Seventh, That no commercial treaty shall be ratified without the concurrence of two thirds of the whole number of the members of the Senate; and no Treaty ceding, contracting, restraining or suspending the territorial rights or claims of the United States, or any of them or their, or any of their rights or claims to fishing in the American seas, or navigating the American rivers shall be but in cases of the most urgent and extreme necessity, nor shall any such treaty be ratified without the concurrence of three fourths of the whole number of the members of both houses respectively.

Eighth, That no navigation law, or law regulating Commerce shall be passed without the consent of two thirds of the Members present in both houses.

Ninth, That no standing army or regular troops shall be raised or kept up in time of peace, without the consent of two thirds of the members present in both houses.

Tenth, That no soldier shall be enlisted for any longer term than four years, except in time of war, and then for no longer term than the continuance of the war.

Eleventh, That each State respectively shall have the power to provide for organizing, arming and disciplining it’s own Militia, whensoever Congress shall omit or neglect to provide for the same. That the Militia shall not be subject to Martial law, except when in actual service in time of war, invasion, or rebellion; and when not in the actual service of the United States, shall be subject only to such fines, penalties and punishments as shall be directed or inflicted by the laws of its own State.

Twelfth That the exclusive power of legislation given to Congress over the Federal Town and its adjacent District and other places purchased or to be purchased by Congress of any of the States shall extend only to such regulations as respect the police and good government thereof.

Thirteenth, That no person shall be capable of being President of the United States for more than eight years in any term of sixteen years.

Fourteenth That the judicial power of the United States shall be vested in one supreme Court, and in such courts of Admiralty as Congress may from time to time ordain and establish in any of the different States: The Judicial power shall extend to all cases in Law and Equity arising under treaties made, or which shall be made under the authority of the United States; to all cases affecting ambassadors other foreign ministers and consuls; to all cases of Admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or States, and between parties claiming lands under the grants of different States. In all cases affecting ambassadors, other foreign ministers and Consuls, and those in which a State shall be a party, the supreme court shall have original jurisdiction; in all other cases before mentioned the supreme Court shall have appellate jurisdiction as to matters of law only: except in cases of equity, and of admiralty and maritime jurisdiction, in which the Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress shall make. But the judicial power of the United States shall extend to no case where the cause of action shall have originated before the ratification of this Constitution; except in disputes between States about their Territory, disputes between persons claiming lands under the grants of different States, and suits for debts due to the United States.

Fifteenth, That in criminal prosecutions no man shall be restrained in the exercise of the usual and accustomed right of challenging or excepting to the Jury.

Sixteenth, That Congress shall not alter, modify or interfere in the times, places, or manner of holding elections for Senators and Representatives or either of them, except when the legislature of any State shall neglect, refuse or be disabled by invasion or rebellion to prescribe the same.

Seventeenth, That those clauses which declare that Congress shall not exercise certain powers be not interpreted in any manner whatsoever to extend the powers of Congress. But that they may be construed either as making exceptions to the specified powers where this shall be the case, or otherwise as inserted merely for greater caution.

Eighteenth, That the laws ascertaining the compensation to Senators and Representatives for their services be postponed in their operation, until after the election of Representatives immediately succeeding the passing thereof; that excepted, which shall first be passed on the Subject.

Nineteenth, That some Tribunal other than the Senate be provided for trying impeachments of Senators.

Twentieth, That the Salary of a Judge shall not be increased or diminished during his continuance in Office, otherwise than by general regulations of Salary which may take place on a revision of the subject at stated periods of not less than seven years to commence from the time such Salaries shall be first ascertained by Congress. And the Convention do, in the name and behalf of the People of this Commonwealth enjoin it upon their Representatives in Congress to exert all their influence and use all reasonable and legal methods to obtain a Ratification of the foregoing alterations and provisions in the manner provided by the fifth article of the said Constitution; and in all Congressional laws to be passed in the mean time, to conform to the spirit of those Amendments as far as the said Constitution will admit.

Done in Convention this twenty seventh day of June in the year of our Lord one thousand seven hundred and eighty eight.

By order of the Convention.

EDMD PENDLETON President  [SEAL.]

Reprinted from Documentary History of the Constitution, Vol. II (1894), pp. 145, 146, 160, 377-385

QUESTION: Was – Is – Secession Legal?

SECESSION - Map of North America after Confederacy was formed

by Diane Rufino, but based in large part on Leonard “Mike” Scruggs book THE UN-CIVIL WAR, January 19. 2018

On July 4, 1776, thirteen British colonies announced their secession from Great Britain and declared to the world their just reasons: “When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the Earth the separate and equal station to which the Laws of Nature and Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to separate.” (paragraph 1 of the Declaration of Independence)

The Declaration of Independence (second paragraph) goes on to say: “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….”

The Declaration then goes o to list numerous grievances against the British Crown and Parliament. Most of these have to do with the British Crown and Parliament usurping the powers of the colonial legislatures, but mention is made of the King keeping troops among the colonists in times of peace, quartering British troops, cutting off colonial trade with the rest of the world, taxing the colonists without their consent (representation), depriving colonists the benefits of trial by jury, arbitrarily dissolving colonial charters, inciting insurrection against the colonies (including among the unfriendly Indian tribes), and more. (Ironically, the one thing not mentioned among the list of 27 grievances was the disarming of the colonists and confiscation of their arms and ammunition – the one thing that inspired Patrick Henry to submit resolutions he’d written to the Virginia colonial legislature to build and train a militia from each county; “They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance by lying supinely on our backs and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot?….. The war is inevitable–and let it come! I repeat it, sir, let it come. The war has actually begun. The next gale that sweeps from the north will bring to our ears the clash of resounding arms. Our brethren are already in the field. Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery?  I know not what course others may take; but as for me, give me liberty or give me death!”)  After the listing of the specific grievances, the Declaration emphasized that neither the King nor Parliament would listen to their complaints and pleas for relief. “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.”

In the closing paragraph, the signers declare that the colonies are “Free and Independent States.” This paragraph also contains the words “appealing to the Supreme Judge of the World” and “with firm Reliance on the Protection of divine Providence.”  Note that the United States of America were not formed into a single national state, but a confederation of independent and sovereign states.

Previous to the Declaration of Independence, both North Carolina (May 20, 1775) and Virginia (early 1776) had already declared their independence from Great Britain. North Carolina took the lead in calling for independence from Great Britain, and her state flag reflects the two historic dates on which she did so – May 20, 1775 and April 12, 1776. On May 20, 1775, a Charlotte government committee drafted the Mecklenburg Resolves which declared the residents of Mecklenburg County, NC independent of Great Britain:

Resolved, That we the citizens of Mecklenburg county, do hereby dissolve the political bands which have connected us to the Mother Country, and hereby absolve ourselves from all allegiance to the British Crown, and abjure all political connection, contract, or association, with that nation, who have wantonly trampled on our rights and liberties — and inhumanly shed the innocent blood of American patriots at Lexington.

Resolved, That we do hereby declare ourselves a free and independent people, are, and of right ought to be, a sovereign and self–governing Association, under the control of no power other than that of our God and the General Government of the Congress; to the maintenance of which independence, we solemnly pledge to each other, our mutual co-operation, our lives, our fortunes, and our most sacred honor.

Resolved, That as we now acknowledge the existence and control of no law or legal officer, civil or military, within this country, we do hereby ordain and adopt, as a rule of life, all, each and every of our former laws, wherein, nevertheless, the Crown of Great Britain never can be considered as holding rights, privileges, immunities, or authority therein.

On May 31, the Committee put the document in final form and adopted it. The updated document announced that all the colonies were independent of Great Britain:  “Whereas by an Address presented to his Majesty by both Houses of Parliament in February last, the American Colonies are declared to be in a State of actual Rebellion, we conceive that all Laws and Commissions confirmed by, or derived from the Authority of the King or Parliament, are annulled and vacated, and the former civil Constitution of these Colonies for the present wholly suspended. To provide in some Degree for the Exigencies of the County in the present alarming Period, we deem it proper and necessary to pass the following Resolves:  (1) That all Commissions, civil and military, heretofore granted by the Crown, to be exercised in these Colonies, are null and void, and the Constitution of each particular Colony wholly suspended……….”

The Resolves were delivered to the North Carolina delegation meeting at the Continental Congress with the hope that the entire Congress would vote and adopt it. The Congress felt the time was not right and did not take the matter up.

On April 12, 1776, the Fourth Provincial Congress, meeting in Halifax County, adopted the “Halifax Resolves,” which gave North Carolina’s delegates to the Continental Congress the authority to vote for independence. It was the first state to give such authority to its delegates.

On May 4, 1776, the colony of Rhode Island declared herself independent of Great Britain, and in late May – June, the Fifth Virginia Convention passed a series of resolutions rejecting all aspects of British authority and establishing a new form of independent government for the Commonwealth of Virginia. Richard Henry Lee, of Virginia, then urged the Continental Congress to follow Virginia’s (and North Carolina’s) lead.

On June 7, 1776, Lee introduced a resolution (the Lee Resolution) to the Second Continental Congress in Philadelphia declaring independence, and John Adams seconded the motion.

Lee’s resolution declared “That these United Colonies are, and of right out 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; that measures should be immediately taken for procuring the assistance of foreign powers, and a Confederation be formed to bind the colonies more closely together.”

The Continental Congress adopted the resolution, finally declaring independence for the 13 colonies, on July 2, but this day has been largely forgotten in favor of July 4, when the “formal” Declaration of Independence, written by Thomas Jefferson, was adopted.

Clearly, the idea that a people could separate from a government that did not serve them, or in the worst case, had become tyrannical and abusive, was something the colonists believed was a natural right.

The right of self-determination for people seeking independence is firmly established in international law. With US backing, Panama seceded from Columbia in 1903. Norway seceded from Sweden in 1905. In the United States, the right of self-determination and therefore secession is supported by the precedence of the Declaration of Independence which declared our own secession from Great Britain.

While the Declaration of Independence is of immense importance as a founding document, it is the Constitution of 1787 and the Bill of Rights ratified in 1791 that are the official founding documents. The Constitution was made official by the approval of the people of each state acting independently in convention, not by the people of the United States in general. Nor did these states surrender their sovereignty to the United States. Only limited government powers were delegated to the Federal Government and every state reserved the right to withdraw these powers. In fact, three states – Rhode Island, Virginia, and New York – specifically stated in their ratifications that they reserved the right to withdraw. Other states had less strongly-worded reservations, but no state would have ratified the Constitution if they believed that in doing so they would be surrendering their newly-won independence.

When New York delegates met on July 26, 1788, their ratification document read, “That the Powers of Government may be resumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same.”

On May 29, 1790, the Rhode Island delegates made a similar claim in their ratification document. “That the powers of government may be resumed by the people, whensoever it shall become necessary to their happiness: That the rights of the States respectively to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same.”

On June 26, 1788, Virginia’s elected delegates met to ratify the Constitution. In their ratification document, they said, “The People of Virginia declare and make known that the 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.”

As demonstrated by the ratification documents of New York, Rhode Island and Virginia, they made it explicit that if the federal government perverted the delegated rights, they had the right to resume those rights. In fact, when the Union was being formed, where the states created the federal government, every state thought they had a right to secede, otherwise there would not have been a Union.

It was to guarantee the sovereignty of the states that the Ninth and Tenth Amendments were added to the Bill of Rights. The Tenth Amendment is a particularly straightforward restatement of the federal nature of the government established by the Constitution: “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.”

Since the Constitution was ratified by sovereign states who desired to retain their sovereignty, the document is classified as a social compact. In essence, it is a contract and thereby its legality is guided by contract law, one of the oldest areas of law. The Constitution is a compact – a contract – between the individual sovereign states, which are the parties, to create the federal government (the creature, or if likening the compact to agency law, the government would be the agent) in order to carry out certain common functions for the states in order that the Union itself could be successful. In the case of Chisholm v. State of Georgia (1793), the Supreme Court expressly declared that the US Constitution is a compact. The right of withdrawal or secession is inherent in the basic document (ie, the right of secession “supersedes” the Constitution) and the Ninth and Tenth Amendments further establish it as a right retained or reserved to each state. It is the option of each state, not the federal government (merely the creature or agent), as to whether it shall remain in the Union or whether it will withdraw. The right of secession was almost universally accepted until Lincoln came up with a new theory of the Constitution – based on a treatise on the Constitution, Commentaries on the Constitution of the United States, written in 1833 by then Supreme Court associate Justice Joseph Story. [It should be noted that Story’s treatise was highly criticized by leading constitutional experts of the day – including Henry St. George Tucker, Sr., John Randolph Tucker, Abel Parker Upshur, James Kent, and John C. Calhoun. Calhoun was revered as an expert on the Constitution and perhaps even more “Jeffersonian” than Jefferson himself.]

New Hampshire’s constitution of 1792 contains very strong words reserving its sovereign powers as a state. In 1798, Thomas Jefferson and James Madison circulated the Kentucky and Virginia Resolutions among the states. These resolutions strongly supported the Doctrine of States Rights and thus also the right of secession. Together these resolutions became known as the “Principles of ’98.”

The Kentucky Resolution, the work of Thomas Jefferson, asserted States’ Rights in very strong terms: “If those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a Nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy….”  (Kentucky Resolutions or Kentucky Resolves of 1799)

The Virginia Resolution, the work of James Madison, asserted States Rights also in very strong terms; perhaps stronger: “That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to Interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”  (Virginia Resolutions or Virginia Resolves of 1798)

The doctrines of Nullification, Interposition, and Secession are all rights reserved to the states under Natural Law (the Law of Nature and God’s Law) and by the US Constitution (both implicitly by the limited nature of the delegations of power to the federal government, and expressly by the Tenth Amendment). Furthermore, they are remedies available under contract theory (compact law).

None of the states disagreed with the “Principles of ‘98” (which, by the way, were articulated to resist the unconstitutional Alien & Sedition Acts, signed into law by President John Adams, which were gross violations of several of the Bill of Rights, but most notably the First Amendment).

The New England states threatened secession on five occasions: (1) In 1803 because they feared the Louisiana Purchase would dilute their political power; (2) In 1807 because the Embargo Act was unfavorable to their commerce; (3) In 1812, over the admission of Louisiana as a state; (4) In 1814 (the Hartford Convention) because of the War of 1812; and (5) In 1814, over the annexation of Texas (which had seceded from Mexico). Additionally, many New England abolitionists favored secession because the Constitution allowed slavery.  From 1803 to 1845, anytime that New England felt that their political power or commercial power might suffer, they threatened secession. Yet when the Southern states did the same, a war was initiated to force them to remain in the Union against their wishes.

As early as 1825, the right of secession was taught at West Point. William Rawle’s View of the Constitution, which was used as a text at West Point in 1825 and 1826 (and thereafter as a reference), specifically taught that secession was a right of each state. Rawle was a friend of both George Washington and Benjamin Franklin and his 1825 text was highly respected and used at many colleges. A subsequent text by James Kent maintained the same position and was used at West Point until the end of the war in 1865. Several Union and Confederate generals were at West Point during the time Rawle’s text was used. Rawle even spelled out the procedure for a state to secede, explaining: “The secession of a state from the Union depends on the will of the people of each state. The people alone… hold the power to alter their Constitution.”

The right of secession was very well-stated by none other than Congressman Abraham Lincoln himself in 1848: “Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government and form a new one that suits them better. This is a most valuable and most sacred right, a right which we hope and believe is to liberate the world.”

That same year, Lincoln further stated: “Any people that can may revolutionized and make their own of so much territory as they inhabit.”

But in 1861, Lincoln adopted a view of secession more expedient to holding the Southern states in the Union against their will. He discovered the theory that Supreme Court associate Justice Joseph Story concocted in his 1833 Commentaries on the Constitution of the United States, asserting that there was an American nation in the minds of the people before the States were formed. This humbuggery had been strengthened by Daniel Webster’s eloquent but disingenuous and speeches to Congress, claiming that the Constitution was not a compact.

So, Lincoln characterized the orderly, democratic Secession Conventions of South Carolina and the Gulf States, conducted in accordance with Rawle’s treatise on the Constitution, and carried out step-by-step in the same manner as the states when they declared their independence from Great Britain and formed the United States of America, as a rebellion perpetrated by a small minority and proceeded on a path that every member of his Cabinet meant war.

As to the question of whether Secession is legal today, the answer is yes. Again, the right is an inherent and natural right, seared into our history by example (secession from Great Britain), implied by the very limited nature of the general government created by the Constitution and the limited powers delegated to it under that document, and expressly reserved to the states by the Tenth Amendment.  Lincoln’s government may have waged a war to somehow reclassify the nature of the conduct of the Southern states in 1860-61 (“rebellion” rather than secession) in order to force those states back into the Union, but its actions cannot change the fact that those states exercised a natural and inherent sovereign right. The Constitution was never amended to prohibit that right to a State and despite attempts to judicially remove it, as well requiring the Southern states to include such a prohibition in their amended state constitutions (in order for them to be “re-admitted” to the Union that Lincoln said they never left), such actions are merely exercises in futility; they are extra-constitutional actions that lack authority or power of enforcement. The right of a people of self-determination, as it applies to government, can never be legislated, decreed, or written away. It is an inalienable right, having its place among the other Laws of Nature and among God’s Law.

***  For an in-depth discussion on the topic of Social Compact, why the US Constitution is, in fact, a social compact, and the remedies naturally available to the parties of a compact (which in our case are the individual states), including the remedy of secession, please read by article “The Social Compact and Our Constitutional Republic,” which is the article preceding this one.

BOOK - The Un-Civil War (Mike Scruggs)

— This article is based, in good part, on Leonard “Mike” Scrugg’s book: THE UN-CIVIL WAR: SHATTERING THE HISTORICAL MYTHS (Chapter 6, Constitutional Issues and the Un-Civil War). The purpose of this article and the reason for relying so heavily on Mr. Scruggs’ book is to get the reader interested not only in the topic at hand but also to be motivated to purchase and read his most excellent book in its entirety and then to share the information with others!

References:

Leonard “Mike” Scrugg’s, THE UN-CIVIL WAR: SHATTERING THE HISTORICAL MYTHS (Chapter 6, Constitutional Issues and the Un-Civil War), 2011, Universal Media (Asheville, NC).

Walter Williams, “States Have a Historical Right to Secede,” Columbia Tribune, April 25, 2009. Referenced at: http://www.columbiatribune.com/02023ee6-5191-5fd7-85a8-b533bfab9c2e.html [The section on the Rhode Island, Virginia, and New York Resumption Clauses – included at the time that these states adopted the US Constitution – is taken entirely from Mr. Williams’ article]

The Social Compact and Our Constitutional Republic

CONSTITUTION - at the Philadalphia Convention

by Diane Rufino, Jan. 21, 2018 (first section only; other sections attributed to other authors)

I. INTRODUCTION

A Social Compact is an agreement, entered into by individuals, that creates some form of self-government and results in the formation of an organized society, the prime motive being the desire for protection and the performance of common functions to serve the community of individuals. To form an organized community, a surrender of some personal liberties is the trade-off.

Perhaps you may remember the Mayflower Compact from your days in grade school. You may remember that it was a document – you probably don’t remember what kind of document it was – that was drafted aboard the Mayflower, as it brought the Pilgrims to the shores of what would one day become Massachusetts. Well, the Mayflower Compact is actually quite significant. It was the first American document to establish a framework of self-government. It was perhaps the first the American Social Compact. The Compact was drafted by the Pilgrims as they sailed across the Atlantic and was signed on November 11, 1620 and became the governing document of Plymouth Colony.

I know that most people have never heard of the term “Social Compact” but I make the case here that this term is probably one of the most important terms to know and understand. The next American Revolution will be to wrestle power away from the federal government and to transfer it back to its rightful depositories, which are the States and the People themselves. The only way this will be possible is if the American people understand that the US Constitution is a social compact, was intended as such, was promoted as such, and was commonly referred to as such up until the end of the Civil War. All of the primary documents that explain the Constitution, refer to it, document its drafting, its adoption, and ratification characterize it as a “social compact.” Early Supreme Court decisions refer to it as a “social compact.” (See Chisholm v. Georgia, 1793; Calder v. Bull, 1798), and dozens of lower federal courts, as well as state courts, have done the same. When the colonies sought their independence from Great Britain, they articulated in the Declaration of Independence they believed that governments are products of social compacts (constitutions establish government authority, and set appropriate limits, all by the consent of the governed) and due to the “compact” or “contract” nature of that agreement, they had the right, under the Laws of Nature and God’s Law, to establish a new government, of their own design and suited to serve them accordingly (“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them….”)

Compact Theory, as will be discussed below, follows the same legal theories as contract law, which is one of the oldest areas of law. There are parties to a compact, there are assigned obligations and benefits, there are consequences for a breach, and there are remedies. In the case of the Constitution, the parties are the individual States. The government is NOT a party but is the creature – it being created by the Constitution. The federal government was “created” to serve the States – to perform those common functions that each state would have to perform alone but could be more efficient, more effective, and uniform, when performed for all. The federal government was created as an Agent for the States – against, to serve their interests, thus making it easy to form and remain together in the form of a Union (a “confederation” of sovereign states). Being the rightful parties to the compact (ie, the “contract”), the obligations and benefits are reserved to them only. The obligations are that each State delegate some their sovereign powers (listed in Article I) to the federal government for the good of the Union and respect that the federal government will govern supremely on those objects. And the benefits are those mentioned – the federal government would serve as the Agent, mainly providing safety and defense, dealing with foreign nations, ensuring regular commerce, and providing a common currency. A compact is a formal, and stable embodiment of the terms on which a group of people decide to live together in a community. It creates their government and represents the “consent of the governed.” The compact retains the same meaning and terms until the people agree to change it.

So, one benefit of a Social Compact is that the parties have a right and an expectation that the terms will remain the same. In the case of the Constitution, the government created is one of limited powers, with those powers expressly listed for each branch. All remaining government power is reserved to the States (both implied by the limited nature of the delegation of power and expressly by the Tenth Amendment). So when the federal government exceeds its powers under the Constitution and passes an unconstitutional law, establishes an unconstitutional policy, or renders an unconstitutional court “opinion,” the States, as the parties to the compact, have a RIGHT to ensure that the government exercises only those powers given it and to PREVENT such unconstitutional law, policy, or court opinion from being enforced on We the People. After all, when the government assumes powers not delegated to it, it naturally usurps them from their natural possessor, which is either the States or the People themselves.

James Madison explained this concept best, when he articulated the doctrines of Nullification and Interposition in his Virginia Resolves of 1798, which were written for the Virginia legislature in order to nullify the Alien & Sedition Acts, which were clearly unconstitutional, and prevent the residents of the state from being subject to them. The Virginia Resolves read: “That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.” In his term “interpose,” he encompasses “nullification’ as well, which is the doctrine that says any law made without the proper authority (ie, an unconstitutional law) is automatically null and void and therefore unenforceable. Of course the federal government will never admit on its own that any of its actions are unconstitutional. It is up to the sovereign States to do that. In this manner, government can be kept in check.

It is Compact Theory that provides this level of protection against government tyranny for We the People.

Besides keeping the federal in check with regard to its rightful powers, States like South Carolina also believed it had the right to intervene when the government violated the basic nature and purpose of its being – to govern for the individual States equally; that is, not to operate government primarily for the benefit of certain States or certain regions over others.

When South Carolina, at the end of 1832, took strong action to oppose the high protective tariffs supported by Andrew Jackson’s administration, the Tariffs of Abomination (of 1828 and then 1832), which were exceedingly burdensome and crushing on the economy of the state, it looked to the compact nature of the Constitution for justification: On January 22, 1833, Senator John C. Calhoun, of South Carolina, submitted the following resolutions:—

Resolved, That the people of the several States composing these United States are united as parties to a constitutional compact, to which the people of each State acceded as a separate sovereign community, each binding itself by its own particular ratification; and that the union, of which the said compact is the bond, is a union between the States ratifying the same.

Resolved, That the people of the several States thus united by the constitutional compact, in forming that instrument, and in creating a general government to carry into effect the objects for which they were formed, delegated to that government, for that purpose, certain definite powers, to be exercised jointly, reserving, at the same time, each State to itself, the residuary mass of powers, to be exercised by its own separate government; and that whenever the general government assumes the exercise of powers not delegated by the compact, its acts are unauthorized, and are of no effect; and that the same government is not made the final judge of the powers delegated to it, since that would make its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among sovereign parties, without any common judge, each has an equal right to judge for itself, as well of the infraction as of the mode and measure of redress.

Resolved, That the assertions, that the people of these United States, taken collectively as individuals, are now, or ever have been, united on the principle of the social compact, and, as such, are now formed into one nation or people, or that they have ever been so united in any one stage of their political existence; that the people of the several States composing the Union have not, as members thereof, retained their sovereignty; that the allegiance of their citizens has been transferred to the general government; that they have parted with the right of punishing treason through their respective State governments; and that they have not the right of judging in the last resort as to the extent of the powers reserved, and of consequence of those delegated,—are not only without foundation in truth, but are contrary to the most certain and plain historical facts, and the clearest deductions of reason; and that all exercise of power on the part of the general government, or any of its departments, claiming authority from such erroneous assumptions, must of necessity be unconstitutional,—must tend, directly and inevitably, to subvert the sovereignty of the States, to destroy the federal character of the Union, and to rear on its ruins a consolidated government, without constitutional check or limitation, and which must necessarily terminate in the loss of liberty itself.”

South Carolina, in convention on November 24, 1832, adopted an Ordinance of Nullification which protested the constitutionality of the tariffs and stated that it would not provide the federal government with said tariff revenue. This would become the so-called Nullification Crisis of 1832. President Jackson threatened to invade South Carolina with federal troops and collect the revenue by force, but a compromise tariff bill was quickly reached in Congress which averted the crisis and which eventually lowered the tariff to pre-1828 levels. Nullification worked !! It prevented government abuse on the people and businesses of Virginia. (The tariff was discriminatory on southern states, particularly South Carolina and the Gulf States; the North did not pay tariffs because of the items that had duties attached; the North manufactured those items – that’s why the tariff was a “protective” tariff… it protected the industries and products of the North !!!!)

Another benefit of characterizing the Constitution as a Social Compact is that if the compact is violated, the State, as a party, has the option to resume its powers. Actually, it has the option of resuming those powers even if there is no violation, but merely because the compact is frustrating its “happiness.” We know the States viewed the Constitution as a compact when they debated it in their ratifying conventions, because all used that term. And we know they believed they had the inherent right to resume the powers delegated because three states, Virginia, New York, and Rhode Island, explicitly included Resumption Clauses in their ratification decisions. They reserved the right to withdraw from the compact. Other states had less strongly-worded reservations, but no state would have ratified the Constitution if they believed that in doing so they would be surrendering their newly-won independence.

When New York delegates met on July 26, 1788, their ratification document read, “That the Powers of Government may be resumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same.”

On May 29, 1790, the Rhode Island delegates made a similar claim in their ratification document. “That the powers of government may be resumed by the people, whensoever it shall become necessary to their happiness: That the rights of the States respectively to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same.”

On June 26, 1788, Virginia’s elected delegates met to ratify the Constitution. In their ratification document, they said, “The People of Virginia declare and make known that the 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.”

The most extreme benefit of a Social Compact is the right of a State, as a party, to secede from the compact.

In adopting her “Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union,” on December 24, 1860, the Palmetto State explained her right to do so based on the compact nature of the Constitution.

“The people of the State of South Carolina, in Convention assembled, on the 26th day of April, A.D., 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.

And now the State of South Carolina having resumed her separate and equal place among nations, deems it due to herself, to the remaining United States of America, and to the nations of the world, that she should declare the immediate causes which have led to this act…….

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.

If only nine of the thirteen States had concurred, the other four would have remained as they then were– separate, sovereign States, independent of any of the provisions of the Constitution. In fact, two of the States did not accede to the Constitution until long after it had gone into operation among the other eleven; and during that interval, they each exercised the functions of an independent nation.

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.

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 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.

In the present case, that fact is established with certainty. 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.

The Constitution of the United States, in its fourth Article, provides as follows: ‘No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up, on claim of the party to whom such service or labor may be due.’

This stipulation 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.

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; they have denounced as sinful the institution of slavery; they have permitted open establishment among them of societies, whose avowed object is to disturb the peace and to eloign the property of the citizens of other States. They have encouraged and assisted thousands of our slaves to leave their homes; and those who remain, have been incited by emissaries, books and pictures to servile insurrection.

For twenty-five years this agitation has been steadily increasing, until it has now secured to its aid the power of the common Government. Observing the forms of the Constitution, a sectional party has found within that Article establishing the Executive Department, the means of subverting the Constitution itself. A geographical line has been drawn across the Union, and all the States north of that line have united in the election of a man to the high office of President of the United States, whose opinions and purposes are hostile to slavery. He is to be entrusted with the administration of the common Government, because he has declared that that ‘Government cannot endure permanently half slave, half free,’ and that the public mind must rest in the belief that slavery is in the course of ultimate extinction.

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.”    [For the full Declaration, go to: http://avalon.law.yale.edu/19th_century/csa_scarsec.asp ]

Note that South Carolina’s real issue with the federal government was the tariff issue; it was the immediate issue. Lincoln promised to support a new protective tariff (which Buchanan has just signed it in his waning days) which would elevate the tariff to its highest levels ever. But legally, the federal government has the authority under the Constitution to erect such tariffs. South Carolina agreed to that authority in adopting the document and joining the Union. It very well could not try to make a legal argument for secession based on its opposition to the high discriminatory tariff. But the slavery issue is a constitutional issue. And it represented an actual, palpable breach of the compact which would justify its withdrawal from the union.

In adopting the Constitution, the states understood that they would be free to leave the Union, as situations dictated. After all, they left the Union established by the Articles of Confederation to establish a new Union under the Constitution. But that Union was different and only those states that adopted would be members of that new Union and bound by the Constitution. Article VII states that 9 states needed to ratify the Constitution in order for it to go into effect.

So, to recap, the particular benefits of a Social Compact lie in the remedies it provides the parties should the compact be violated, or breached. The consequences for a breach of the compact are simple: If a State breaches, the others, acting alone, can decide whether to consider the compact broken which then would allow it to be relieved of its obligations (ie, the State would no longer be bound by the Constitution). If the federal government attempts to assume powers not delegated to it, the States have a right, even an obligation, to identify that unconstitutional act and prevent its enforcement.

And an extreme remedy is always available – the right of rescission. Rescission is the right of one of the parties to rescind or cancel the contract for cause. It is the right of a party, if there are many parties, to withdraw from the agreement. This is the remedy of secession. The abrogation, or cancellation of a contract, or withdrawal or secession from a compact, is a remedy designed to restore the parties to the positions they would have been in if no contract or compact had ever been formed. As explained above, once a State decides to secede, it resumes all the powers it had delegated away and resumes its natural station under the Laws of Nature. It is then free to establish a new form of government that suits is purposes. As to the remaining States, they are free to remain in the compact, which at that point would be a new Union. That Union is free to remain on the same terms and under the same conditions.

The Constitution was roundly understood and recognized as a Social Compact up until the years leading to the Civil War. Again, all our founding documents and primary documents explaining the Constitution and referring to it characterize it as a Social Compact. But something happened in the years when South Carolina started to become contentious with regards to the high protective tariffs. The protective tariffs had became a hallmark of the Whig Party platform and then the Republican Party platform. Leading Whig (House Speaker, then Senator) Henry Clay initiated a new government plan to help businesses. It was called the “American System” and included protective tariffs and internal improvements. The money raised by high protective tariffs would be used not only to fund the government (about 1/3 of the revenue), but it would also go to the North, for internal improvements to further industrialize those states. In other words, the protective tariffs, according to the South (and particularly South Carolina, led by Senator John C. Calhoun), were nothing more than a government scheme to plunder the wealth of the South and transfer it to the North for its benefit. When the government realized that South Carolina was not playing along smoothly, was bucking the system, and was threatening to even leave the Union over the tariff situation (perhaps other Southern States would follow suit), and they had just causes under compact theory, suddenly the notion of the Constitution as a Social Compact became a liability. All of a sudden, political leaders began asserting that the Constitution was not a Social Compact, including Senator Daniel Webster and then Abraham Lincoln himself. Lincoln came up with a new theory of the Constitution – based on a treatise on the Constitution, Commentaries on the Constitution of the United States, written in 1833 by then Supreme Court associate Justice Joseph Story. He would classify the Constitution as establishing a “perpetual Union” that the States had fully intended to create. [It should be noted that Story’s treatise was highly criticized by leading constitutional experts of the day – including Henry St. George Tucker, Sr., John Randolph Tucker, Abel Parker Upshur, James Kent, and John C. Calhoun. Calhoun was revered as an expert on the Constitution and perhaps even more “Jeffersonian” than Jefferson himself.] In 1833, after spending almost all of his life referring to the Constitution as a compact, leading politician and powerful orator (a “thundering” orator), Senator Webster took to the Senate floor and delivered a speech expressly denouncing the Constitution as a compact. [That speech, by the way, was given in response to the Resolutions introduced on Jan. 22 by Senator John Calhoun (shared earlier) to explain why South Carolina nullified the federal tariff].

It should be noted that years earlier, Senator Webster’s position was quite different: “But, sir, there is a compact, and no man pretends that the generation of today is not bound by the compacts of the fathers. A bargain broken on one side is a bargain broken on all; and the compact is binding upon the generation of today only if the other parties to the compact have kept their faith.” Works of Daniel Webster

If the Constitution is not characterized as a Social Compact, in total disregard of history and ignoring all of our historic documents, then we do not have the relationship between the government and the States, and the government and the People, as the States and our Founders intended. Liberty would not be safe. If is not a Social Compact, then the government is just one more group of people living in this broad general geographical territory. If we reject the status of the Constitution as a Social Compact, as liberals and progressives would like (because they favor a strong central government with plenary powers), then we must get used to the permanent notion that the federal government as the creature is more powerful than its creators. The powers “reserved to the States” would be usurped whenever the government deems it beneficial to do so. The powers surrendered to it by the States and by the People could not be resumed by them and the government would have total control over any object and over any individual or group it wishes. It would effectively mean the end to federalism – the only option left to limit the federal government. It would leave the States at the mercy of the intentions of DC politicians. The government would have a total monopoly over the meaning and scope of its powers (sorta like the monopoly it has now!) and our rights and the States’ rights would be exercised only at the good graces and designs of the federal government.

Lastly, if the Constitution is not characterized as a Social Compact, then the States do not have the remedies articulated earlier. Then the States truly have no option to secede and Lincoln’s Union will have become a reality – one that is perpetual. It will be perpetual because the government now has the right to seek its own longevity; under Compact theory, government only exists as long as it rightfully protects the rights of the individuals and serves them well.

II. DEFINITION & ORIGIN of the SOCIAL COMPACT (This section comes from: Martin Kelly, “The Social Compact,” ThoughtCo.)

The term “social contract” refers to the belief that the state exists only to serve the will of the people, who are the source of all political power enjoyed by the state. The people can choose to give or withhold this power. The idea of the social contract is one of the foundations of the American political system.

The term “social contract” can be found as far back as the writings of Plato. However, English philosopher Thomas Hobbes expanded on the idea when he wrote his classic, Leviathan, which was his philosophical response to the English Civil War. In the 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 over others at any time. Hobbes’ theory was that the people mutually agreed to create a state, giving it only 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.

Jean Jacques Rousseau and John Locke each took the social contract theory one step further. Rousseau wrote The Social Contract, or Principles of Political Right, in which he explained that the government is based on the idea of popular sovereignty. The essence of this idea is that the will of the people as a whole gives power and direction to the state. John Locke also based his political writings on the idea of the social contract. He stressed the role of the individual and the idea that in the ‘State of Nature,’ people are essentially free. However, they might decide to form a government to punish other individuals who go against the laws of nature and harm others.

It follows that if this government no longer protected each individual’s right to life, liberty, and property, then revolution was not just a right but an obligation.

The idea of the social contract had a huge impact on the Founding Fathers, especially Thomas Jefferson and James Madison. The U.S. Constitution itself starts with the three words, “We the people…” embodying this idea of popular sovereignty in the very beginning of this key document. Thus, government that is established by the free choice of its people is required to serve the people, who in the end have sovereignty, or supreme power to keep or get rid of that government.

III. THE SOCIAL COMPACT and CONSTITUTION REPUBLICS (This section comes entirely from the Constitution Society, 2007)

Between 1787 and 1791 the Framers of the U.S. Constitution established a system of government upon principles that had been discussed and partially implemented in many countries over the course of several centuries, but never before in such a pure and complete design, which we call a constitutional republic. Since then, the design has often been imitated, but important principles have often been ignored in those imitations, with the result that their governments fall short of being true republics or truly constitutional. Although these principles are discussed in civics books, the treatment of them there is often less than satisfactory. This section will attempt to remedy some of the deficiencies of those treatments.

The Social Contract and Government –

The fundamental basis for government and law in this system is the concept of the social contract, according to which human beings begin as individuals in a state of nature, and create a society by establishing a contract whereby they agree to live together in harmony for their mutual benefit, after which they are said to live in a state of society. This contract involves the retaining of certain natural rights, an acceptance of restrictions of certain liberties, the assumption of certain duties, and the pooling of certain powers to be exercised collectively.

The social contract is very simple. It has only two basic terms: (1) mutual defense of rights; and (2) mutual decision by deliberative assembly. There are no agents, no officials, that persist from one deliberative assembly to another. The duties of the social contract are militia. There may be customs that persist from assembly to assembly, such as customs for due notice, parliamentary procedure, judicial due process, and enforcement of court orders by militia. This second term could be called the constitution of society, but it precedes a constitution of government and should not be confused with it.

There is also a constitution of nature that precedes both the constitution of society and the constitution of government. It is also convenient to speak of a constitution of the dominion that follows the constitution of society and precedes the constitution of government. It arises after a society is created (by adopting the social contract), and after it acquires exclusive dominion over a well-defined territory. That is when we get things like a right to remain at and to return to one’s birthplace, which makes no sense for a society with no territory (such as nomads).

A constitution of government, such as the Constitution of 1787, is the next step in the development. It is to establish institutions, offices, procedures, duties, and structures that persist from one assembly to another that are not just customs. It is at that point that we begin to get things like laws, and paid agents and officials, whose jobs continue beyond transient assemblies. We also get taxes, standing armies, and professional law enforcers. Such pooled powers are generally exercised by delegating them to some members of the society to act as agents for the members of the society as a whole, and to do so within a framework of structure and procedures that is a government. No such government may exercise any powers not thus delegated to it, or do so in a way that is not consistent with established structures or procedures defined by a basic law which is called the constitution.

While it is possible in principle for such a constitution to consist entirely of a body of unwritten practices, traditions, court decisions, and long-established statutes, in practice no such basic order can be considered secure against confusion or corruption if it is not primarily based on a written document, which prescribes the structure, procedures, and delegated powers of government, and the retained rights of the people, and which is strictly interpreted according to the original intent of the framers.

Although in principle the procedures may allow for the direct adoption of legislation by vote of the people, this is both impractical and potentially dangerous, especially to the rights of minorities, so that it is generally best that most legislation require approval at some point in the legislative process by a deliberative assembly, a body of elected representatives rather than by direct popular vote, and that any such legislation be subject to judicial review, whereby legislation not consistent with the constitution can be voided. Such a form of government is called a republic, as distinct from a democracy, in which all legislation is adopted solely by direct popular vote. And if it operates under a well-designed constitution, it is a constitutional republic.

It is important that the deliberative assembly fairly represent all the competing interests of the people, so that the concerns of minorities can be weighed and not ignored. But fair representation is insufficient if deliberation is not effective in analyzing and anticipating all the consequences of any decisions that might be made. The consent of the majority should be necessary for action, but that consent should never be sufficient for action.

Origins of the Social Contract –

Critics of social contract theory argue that almost all persons grow up within an existing society, and therefore never have the choice of whether to enter into a social contract. Not having a choice, they say, makes any such contract void.

The original proponents of the social contract theory, John Locke, David Hume, and Jean-Jacques Rousseau, answered these critics, but not in a way that is entirely satisfactory. To understand how the social contract comes about, we need to look at the kinds of contract that prevail during each stage in the development of a human being in society.

Each of us begins life under the terms of a special kind of social contract called a filial contract, between a child and his parents, and by extension to his siblings. That contract is established at the moment of bonding between parents and child following birth, and the terms of the contract are that the child will provide the parents certain pleasures that come with parenthood, particularly the satisfaction of helping to form a happy and admirable adult, and support for the parents in their later years, and in turn receives their love, support, guidance, and protection during childhood.

Although a filial contract can exist in a family that is isolated from any larger society, when the parents join a society, they pool their rights and duties as parents with other members of that society, and thereby become agents of the larger society in the raising of their own children, and accountable to that larger society for doing so properly.

As a child grows, it encounters other members of the larger society, usually beginning with other children. Whenever any two or more individuals meet with the understanding and expectation that they will live together in harmony and not fight with one another using any available means, they are establishing a social contract among themselves. In most cases they will be contracting with persons who have already established such a contract with still other persons, so that the terms of the contract are not only to live in harmony with those in direct contact, but also with all those with whom each of the parties is already engaged in a social contract, and by extension, to all others that those are in a social contract with, and so on. In other words, the social contract is transitive: if a is in a social contract with b, and b with c, then a is in a social contract with c. In this way each of us is bound under a social contract with all the other members of the society, most of whom we have never met.

As a person makes the transition from childhood to adulthood, his obligations change to match his abilities, and the filial contract gives way to the larger social contract and obligations to larger communities at the local, provincial, national, and global levels.

Of course, the social contracts of several societies may not extend to one another, giving rise to tribes or nations, whose members are bound by social contract within their membership, but are in a state of nature with respect to one another. If that state of nature involves active conflict, whether at the individual, tribal, or national level, it is said to be a state of war.

Breaches of the Social Contract —

Although the situation of there never having been a social contract is a fairly simple one, the situation of either deceiving another into thinking there is a social contract between them, or of entering into a social contract and then violating its terms, can be much more complicated, and much of law and government is concerned with dealing with such situations.

In his treatment of the subject, Locke tended to emphasize those violations of the social contract that are so serious that the social contract is entirely broken and the parties enter a state of war in which anything is permitted, including killing the violator. Today we would tend to place violations on a scale of seriousness, only the most extreme of which would permit killing. Some would even go so far as to exclude killing for any transgression, no matter how serious, but that extreme view is both unacceptable to most normal persons and subversive of the social contract itself, which ultimately depends not on mutual understanding and good will, but on a balanced distribution of physical power and the willingness to use it. Sustaining the social contract therefore depends in large part on so ordering the constitution and laws as to avoid unbalanced or excessive concentrations of power, whether in the public or the private sector.

Checks and Balances –

The framers of the U.S. Constitution addressed the problem of avoiding unbalanced or excessive concentrations of power in government by adopting a constitution in which legislative, executive, and judicial powers are largely divided among separate branches, with each having some power to check the abuses of the others. Legislative powers were further divided between two legislative bodies. Some powers were delegated to the central national government, which others were reserved to the component states or the people.

Around the end of the 19th century, however, it became increasingly apparent that excessive and unbalanced concentrations of power in the private sector could subvert the system of checks and balances in government, and the first anti-trust laws were passed to try to provide a check on those undue influences. Unfortunately, such legislation has not been entirely effective, and we now face a situation in which to an intolerable degree the real powers of government are being exercised not by constitutional bodies but by secret cabals based in the private sector but extending throughout government, cabals which are increasingly coherent and increasingly abusive of the rights of the people, including the right to have government be accountable to them and not to a power elite. The continued constitutional development of this society will therefore require the development of a new, more sophisticated system of checks and balances that extends throughout the private sector as well as the public and does not entirely rely on market forces.

Much of the abuse that has developed arises from the assumption by the national or central government of powers not delegated to it under the Constitution, and the erosion of the powers of the States with respect to that central government. Some of those powers are arguably best exercised by the central government, but without constitutional authority even the exercise of reasonable powers becomes an abuse and leads to an escalating cycle of abuses as more and more people resist such intrusions, creating a crisis of legitimacy not only for those unconstitutional activities but for the constitutional ones as well. If government is to be brought into compliance with the Constitution, then there will have to be a carefully planned program of repealing or overturning unconstitutional legislation and official acts, combined with a number of amendments that will provide the needed authority for legislation and acts which are best exercised by the central government, and the re- enactment of legislation based on such amendments. That will leave a difficult problem of dealing with all those actions conducted without constitutional authority before the amendments are adopted. Making the amendments retroactive is not permissible under constitutional principles, which exclude not only ex post facto laws but ex post facto amendments as well.

Of Rights Natural and Constitutional –

Under the theory of the social contract, those rights which the individual brings with him upon entering the social contract are natural, and those which arise out of the social contract are contractual. Those contractual rights arising out of the constitution are constitutional rights. However, natural rights are also constitutional rights.

The fundamental natural rights are life, liberty, and property. However, it is necessary to be somewhat more specific as to what these rights include. Therefore, constitution framers usually expand them into such rights as the right of speech and publication, the right to assemble peaceably, the right to keep and bear arms, the right to travel over public roadways, and so forth. The exercise of such natural rights may be restricted to the extent that they come into conflict with the exercise of the natural rights of other members of society, but only to the minimum degree needed to resolve such conflict.

Such natural rights are inalienable, meaning that a person cannot delegate them or give them away, even if he wants to do so. That means that no constitutional provision which delegated to government at any level the power to take away such rights would be valid, even if adopted as an amendment through a proper amendment process. Such rights apply to all levels of government, federal, state, or local. Their enumeration in the constitution does not establish them, it only recognizes them. Although they are restrictions on the power of government, the repeal of the provisions recognizing them would not remove the restrictions or allow the delegation of any power to deny them. The people do not have that power, and therefore cannot delegate it to government.

Yet constitutions recognize the power to deprive persons of their rights under due process of law. Strictly speaking, a person may not be deprived of such rights in the sense of taking them away. Natural rights are never lost. Their exercise can, however, be restricted or, to use the proper legal term, disabled. While some might question the practical distinction between losing a right and having it disabled, that distinction is important. A right which is disabled under due process may also be re- enabled by the removal of that disability, and the disability is removed if the social contract is broken and persons return to the state of nature.

Due process is not defined in the written U.S. Constitution, which points out the fact that the constitution consists not only of the written document itself, but the body of court precedents, legal definitions and traditions, and prevailing civic processes as of the date the written document was ratified, which is called pre-ratification Common Law. It also includes the commentaries and records of the debates of the framers and ratifiers insofar as they provide guidance on how to interpret the provisions of the written document. The constitution is further expanded to include the body of court precedents since ratification which interpret its provisions, called post-ratification common law, but only insofar as those court precedents are consistent with the written document, pre-ratification Common Law, and the original intent of its framers and ratifiers.

Certain rights, therefore, such as the rights of due process and the right to vote, are contractual. They have no meaning in a state of nature, only within the context of a civil society. And they are defined within Common Law rather than in the written Constitution.

Due process requires, among other things, that any disablement of a right be done only by a court of competent jurisdiction in response to a petition to do so, and after arguments and evidence are heard from all sides to support or refute the granting of such petition. The only rights which may be disabled by statute and without a specific court proceeding are the rights of majority, or adulthood. Common Law recognizes that persons are born with disabilities of minority, and constitutions and laws typically define some age at which those disabilities are removed, such as age 18 in the United States for purposes of voting, although it may allow for such disabilities to be removed earlier, or retained past the usual age of majority, upon petition to do so. Due process therefore requires that each and every right which is to be disabled be argued separately on its merits, and the ruling or sentence of the court explicitly disable each such right.

This requirement therefore comes into conflict with legislation which prescribes the disablement of certain rights for persons convicted of certain types of crimes, such as the right to vote or to keep and bear arms, without that disablement being made an explicit part of the sentence or the sentencing hearing. Such legislation must be considered unconstitutional, for even though there may be due process in the case which results in the explicit disablement of the rights to certain liberties or properties, those disablements are openly stated and argued, and the statutory inclusion of other disablements that are not made explicit or separately argued is a denial of due process.

Duties under the Social Contract –

While a constitution prescribes the legal rights of individuals and the powers of government, the social contract also includes certain duties which members assume upon entry. Those duties include the duty to avoid infringing on the rights of other members, to obey just laws, to comply with and help enforce just contracts, to serve on juries, and to defend the community.

It is important to recognize that although individuals have a right of self-defense in the state of nature, when they enter into society under the social contract, the pooling of that right transforms it into a duty to defend the community, and therefore to risk or sacrifice one’s life, liberty, or property if such defense should require it. The right of self-defense is no longer supreme, although it survives the transition to society as a duty to defend oneself as part of the community. Pacifism in the face of mortal danger to oneself or others is therefore not consistent with the social contract, and persons who insist on that position must be considered not to be members of society or entitled to its benefits, and if they live in the same country, have the status of resident aliens.

This duty implies not only individual action to defend the community, but the duty to do so in concert with others as an organized and trained militia. Since public officials may themselves pose a threat to the community, such militias may be subject to call-up by officials, but may not be subject to their control except insofar as they are acting in accordance with the constitution and laws pursuant thereto, and in defense of the community. Since any official designated to call up the militia may be an enemy of the constitution and laws, and may fail to issue a call-up when appropriate, militias must remain able to be called up by any credible person and independent of official control.

Another important duty is jury duty. Since officials may be corrupt or abusive or their power, grand jurors have the duty not only to bring an indictment upon evidence presented to it by a prosecutor, but to conduct their own investigations and if necessary, to appoint their own prosecutors to conduct a trial on the evidence. Petit jurors have the duty to not only follow the instructions of the judge to bring a verdict on the “facts” in a case, but to rule on all issues before the court, overriding the judge if necessary. No matter how despicable an accused defendant might be or how heinous his acts, they have the duty to find that accused not guilty if the court lacks jurisdiction, if the rights of the accused were seriously violated in the course of the investigation or trial, or if the law under which the accused is charged is misapplied to the case or is unconstitutional; and to find the law unconstitutional if it is in violation of the constitutional rights of the accused, if it is not based on any power delegated to the government, if it is unequally enforced, or if it is so vague that honest persons could disagree on how to obey or enforce it. Since most jury instructions now discourage petit juries from exercising that duty, almost all convictions brought by such juries in which there was an issue in law must be considered invalid, due to jury tampering by the court.

Governmental Powers and Duties –

Some critics of social contract theory argue that there are some powers of government that are not derived from powers of the people or delegated to the government by them. However, a careful analysis will show that all powers exercised by government derive either from the people as a whole, or from some subset of the people, or from one person, and that only the first are legitimate. The power to tax? Persons in the state of nature have the power to tax themselves, although they would not ordinarily think of it that way.

Most written constitutions prescribe the powers delegated to government, but are not always explicit about the duties. It is implied that the government has the duty to exercise its powers wisely and pursuant to the purposes of the social contract. But some persons argue that the power to act is also the power not to act. Could the government choose not to exercise its power to conduct elections, or to defend the country, or to maintain a sound currency, or to organize and train the militias of each state? No. Except in case of emergency, and only for the duration of the emergency, government must exercise the powers delegated to it according to their purposes to the best of its ability. That is its duty. Just as it is the duty of every member of society to exercise his or her powers in service of the community.

References: Ernest Barker, ed., Social Contract, Oxford U. Press, London, 1960. Contains the essays: John Locke, An Essay Concerning the True Original, Extent, and End of Civil Government; David Hume, Of the Original Contract; Jean-Jacques Rousseau, The Social Contract.

James Madison, Notes of Debates in the Federal Convention. The definitive record of the proceedings of the Constitutional Convention of 1787.

James Madison, Alexander Hamilton, John Jay, The Federalist.

Bernard Schwartz, The Roots of the Bill of Rights, Chelsea House, New York, 1980.

Leonard W. Levy, Original Intent and the Framers’ Constitution, 1988, Macmillan, New York. Scholar examines “original intent” doctrine and its alternatives.

Stephen P. Halbrook, That Every Man Be Armed, 1984, Independent Institute, 134 98th Av, Oakland, CA 94603.

Clarence Streit, Atlantic Union Now, 1962, Freedom & Union Press, Washington, DC.

**** The Constitution Society gives its permission for this last section (“The Social Compact & Constitutional Republics”) to be copied with attribution for noncommercial purposes.

This post includes a compilation of two previous works:
I. My original composition

II. The Intro about Social Compact: Martin Kelly, “The Social Compact,” ThoughtCo., June 26, 2017. Referenced at: https://www.thoughtco.com/social-contract-in-politics-105424

III. “The Social Compact & Constitutional Republics,” 2007 Constitution Society. http://www.constitution.org/soclcont.htm

Other Resource: “Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union” (The Avalon Project; Yale Law School) — http://avalon.law.yale.edu/19th_century/csa_scarsec.asp

Rethinking the Southern Secession Movement of 1861

SECESSION - Union is Dissolved

by Diane Rufino, July 23, 2017

The question is: Was the Civil War fought over the issue of Slavery?  I won’t deny that slavery was an issue that inflamed the passions of both sections of the country and put each at odds with one another, but it was NOT the cause of the conflict that I will refer to as the War of Northern Aggression, a war which claimed the lives of over 650,000 young Americans.

At the end of 1860, with the election of Abraham Lincoln as president, the Union was on the verge of dissolution. By the time Lincoln was inaugurated on April 4, seven states had already seceded and a new nation had been formed, the Confederate States of America (complete with a new constitution).  Following South Carolina’s lead (December 1860), Mississippi, Florida, Alabama, Georgia, Louisiana, and then Texas formally severed political ties with the Union. On April 4, Virginia held a state convention to consider secession but voted it down, 89-45. (North Carolina would do the same). Lincoln could not allow the Union to be split; he could not lose the tariff revenue supplied by the agrarian South which, in 1859, not only supplied approximately 80% of the federal revenue, but was used to enrich the industrialized North. And so, something had to be done to give Lincoln a “pretext” to restore the Southern states to the Union.

On April 12, 1861, Lincoln tricked South Carolina militia forces into firing on the federal garrison at Fort Sumter, even after South Carolina had demanded, and even tried negotiating for, the transfer of the fort to the Confederacy. The attack on Fort Sumter would provide the pretext he needed. He used the incident to characterize the southern states as being in a state of active rebellion and thus ordering troops to subdue them. On April 15, President Lincoln declared a state of insurrection and called for 75,000 volunteers to put down the rebellion and to defend the capital.  With that proclamation, four more Southern states left the Union. The first was Virginia.

Virginia did not leave the Union because of slavery; same with North Carolina. We should take particular note of this piece of history.

Virginia looked at President’s Lincoln’s Proclamation and demand for troops, and just as her leaders did when President John Adams passed the Sedition Act, she saw serious constitutional violations and contemplated how she needed to respond.

In reading the responses by Virginia’s Governor John Letcher below, you will see that he exercised all the remedies implied in the concept of State Sovereignty, Tenth Amendment, and even the Declaration of Independence:  First, he refused to comply with Lincoln’s decree – Virginia would not supply troops. That is Nullification and Interposition. And then, because the proclamation evidenced the will of a maniac, a tyrant, and an enemy of the Constitution, and evidenced the transformation of the federal government into something Virginia could no longer trust her sovereignty with and no longer wanted to be associated with, her people decided to sever the bonds which held her in allegiance. Virginia seceded.

On April 16, Virginia’s Governor John Letcher made the following dispatch to Lincoln’s Secretary of War, Simon Cameron:

EXECUTIVE DEPARTMENT.RICHMOND, Va., April 16, 1861.

HON. SIMON CAMERON, Secretary of War:

SIR: I received your telegram of the 15th, the genuineness of which I doubted. Since that time (have received your communication, mailed the same day, in which I am requested to detach from the militia of the State of Virginia “the quota designated in a table,” which you append, “to serve as infantry or riflemen for the period of three months, unless sooner discharged.”

In reply to this communication, I have only to say that the militia of Virginia will not be furnished to the powers at Washington for any such use or purpose as they have in view. Your object is to subjugate the Southern States, and a requisition made upon me for such an object — an object, in my judgment, not within the purview of the Constitution or the act of 1795 — will not be complied with. You have chosen to inaugurate civil war, and having done so, we will meet it in a spirit as determined as the Administration has exhibited towards the South. Respectfully,

JOHN LETCHER.

The following day, Governor Letcher issued the following proclamation, which was published for the people of Virginia to read:

Whereas, Seven of the States formerly composing a part of the United States have, by authority of their people, solemnly resumed the powers granted by them to the United States, and have framed a Constitution and organized a Government for themselves, to which the people of those States are yielding willing obedience, and have so notified the President of the United States by all the formalities incident to such action, and thereby become to the United States a separate, independent and foreign power; and whereas, the Constitution of the United States has invested Congress with the sole power “to declare war,” and until such declaration is made, the President has no authority to call for an extraordinary force to wage offensive war against any foreign Power: and whereas, on the 15th inst., the President of the United States, in plain violation of the Constitution, issued a proclamation calling for a force of seventy-five thousand men, to cause the laws of the United states to be duly executed over a people who are no longer a part of the Union, and in said proclamation threatens to exert this unusual force to compel obedience to his mandates; and whereas, the General Assembly of Virginia, by a majority approaching to entire unanimity, declared at its last session that the State of Virginia would consider such an exertion of force as a virtual declaration of war, to be resisted by all the power at the command of Virginia; and subsequently the Convention now in session, representing the sovereignty of this State, has reaffirmed in substance the same policy, with almost equal unanimity; and whereas, the State of Virginia deeply sympathizes with the Southern States in the wrongs they have suffered, and in the position they have assumed; and having made earnest efforts peaceably to compose the differences which have severed the Union, and having failed in that attempt, through this unwarranted act on the part of the President; and it is believed that the influences which operate to produce this proclamation against the seceded States will be brought to bear upon this commonwealth, if she should exercise her undoubted right to resume the powers granted by her people, and it is due to the honor of Virginia that an improper exercise of force against her people should be repelled.

Therefore I, JOHN LETCHER, Governor of the Commonwealth of Virginia, have thought proper to order all armed volunteer regiments or companies within this State forthwith to hold themselves in readiness for immediate orders, and upon the reception of this proclamation to report to the Adjutant-General of the State their organization and numbers, and prepare themselves for efficient service. Such companies as are not armed and equipped will report that fact, that they may be properly supplied.

In witness whereof, I have hereunto set my hand and caused the seal of the Commonwealth to be affixed, this 17th day of April, 1861, and in the eighty-fifth year of the Commonwealth.

JOHN LETCHER.

On April 17, in a newly-called convention, Virginia, the traditional leader of the South, made the decision to secede – 88 to 55, on the condition of ratification by a statewide referendum. Neither Virginia nor any of the other later-seceding states understood the federal government to authorize violence against member states.

Virginia’s ordinance of secession was ratified in a referendum by a vote of 132,201 to 37,451 on May 23.

On April 4, Virginia decided to remain in the Union. How did that decision preserve or extend slavery?  Virginians had been willing to endure a crushing protective tariff under President Lincoln, the likes of the Tariff of Abominations (1828). And they understood that remaining in the Union would mean that slavery would continue to be under attack by his administration. Virginia was loyal to the Union even when the government was antagonistic to her.  No, slavery wasn’t the reason the Southern states of Virginia, Arkansas, Tennessee, and North Carolina (and probably others), left the Union. It would be Lincoln’s demand for troops that would change their minds. To these states, remaining in the Union was to abandon every principle of confederation that they valued. Continued loyalty to a Union that would attack member states and being forced to take up arms against her neighbors was inconceivable and intolerable.

Slavery was the issue that caused the North to become aggressively hostile to the states of the South and to cause the South to question whether the two regions could ever have enough of a common interest to remain joined together with a government that was to serve each equally and fairly. But the independent ambitions of the federal government and the schemes and twisted ideology of its president were the direct cause of its violent course the division would take.

 

Reference:

“Governor Letcher’s Proclamation: His Reply to Secretary Cameron – State of Affairs Norfolk,” New York Times, April 22, 1861.  Referenced at:  http://www.nytimes.com/1861/04/22/news/gov-letcher-s-proclamation-his-reply-secretary-cameron-state-affairs-norfolk.html

 

SAVE THE REPUBLIC! Rethinking the American Union of States for the Preservation of Republicanism

SECESSION - Separate or Die (head, the federal government, is chopped off)

by Diane Rufino (citing Donald Livingston in his book Rethinking the American Union for the Twenty-First Century), July 26, 2016

The purpose of this article is three-fold:  First, I want to be provocative and get readers thinking.  Second, I wish to educate the reader on our founding principles. And third, I hope to encourage the reader to read the book Rethinking the American Union for the Twenty-First Century, written in part and edited by Donald Livingston, founder and president of the Abbeville Institute.  I enjoyed the book immensely and wanted very much to help get the word out.

I think the best way to encourage one to read the book Rethinking the American Union for the Twenty-First Century is to hook him or her using one of the more thought-provoking themes of the book. And so, this article is composed in great part using selected portions from one of the chapters in that book which I found most interesting – “American Republicanism,” authored by Livingston), with a discussion of nullification, interposition, secession, and federalism by myself.  Credit, of course, goes first and foremost to Professor Livingston.

Article IV of the US Constitution guarantees to every State in the Union “a Republican form of government.”  It is known as the “Guarantee Clause.”  It has not been widely interpreted, but constitutional scholars think it ensures that each State be run as a representative democracy or a dictatorship, preventing any initiative to change a State constitution to provide such.  The Supreme Court has essentially acknowledged that it doesn’t have the slightest idea what it means, has been reluctant to specify exactly what a “republican form of government” means and has left the clause devoid of meaning.  Historically, however, republics have had distinct characteristics, namely that its citizens make the laws they are to live under, that there is a Rule of Law, and that the republic itself be relatively small with respect to population and territory, to ensure that representation is meaningful.

The American system of 1789 was not a republic. It was a federation of republics – each state itself a republic – but the Union itself was not a republic. “A federation of republics is not itself a republic, any more than a federation of country clubs is not in and of itself a country club.” Under the Constitution of 1787, the central government could rule over individuals but only under the powers delegated to it by the sovereign States. All other powers of sovereignty belong to the States, expressly reserved through the Tenth Amendment, by the natural law of sovereignty, and contractually by force of the compact theory characterizing the Constitution. Given this framework, the final safeguard for a truly republican form of government for the people in America was, and could only be, some form of lawful resistance to the concentration of coercion in the federal government, which includes state interposition, nullification, or secession. These remedies are included in the “reserved powers” belonging to the States.

Nullification is a legal theory that holds that a State has the right to nullify, or invalidate, any federal law which that State has deemed unconstitutional. If the authority for the federal government only comes from the highly-contested and debated powers that the States agreed to delegate from their reservoir of sovereign powers, as listed in the Constitution, any federal law, policy, action, or court decision that exceeds such grants of power is “null and void” and lacks enforcement power. Since the federal government will always seek to support and enforce its laws and actions, it must be the States, as the parties to the Constitution and the ones which suffer the usurpation of powers with each unconstitutional action, which must rightfully declare “unconstitutionality” and prevent them from being enforced on a free people. Because the right of nullification is not prohibited by the Constitution (nor is it even addressed), it is reserved by the States under the Tenth Amendment.

Interposition is another claimed right belonging to the States. Interposition is the right of a State to oppose actions of the federal government that the state deems unconstitutional by in order to prevent their enforcement.  The very definition of a tyrannical government is one that imposes unconstitutional actions on its citizens. Tyranny is arbitrary rule. Interposition is the actual action, whether legislative or otherwise, to prevent an unconstitutional federal law or action from being enforced on its people. The most effective remedy against unconstitutional federal action, as emphasized by both Thomas Jefferson and James Madison, is nullification together with interposition. Interposition finds its roots in the Supremacy Clause.  While the Constitution and the laws made in pursuance are considered the supreme law of the land, laws (and other actions) not grounded in rightful or legitimate Constitutional powers are not supreme and the States are well within their powers to prevent such usurpation of government power belonging to their sphere of authority.

Secession, like nullification and interposition, is not prohibited by the Constitution (or even addressed), and hence, is a reserved right of the States.

Nullification and interposition were invoked in 1798 by Kentucky and Virginia to identify the Alien & Sedition Acts as unconstitutional and to prevent citizens of those states from being imprisoned essentially for their exercise of free speech and press. Secession was threated in 1815 by Massachusetts after it characterized Jefferson’s embargo against Great Britain and his Louisiana Purchase and then Madison’s War of 1812 as a history of abuses against the North, with an intent to further the interests of the South. All three States’ Rights’ remedies were regularly invoked in the antebellum period, in every section of the Union, to assert State sovereignty and to constrain the central government. As of 1860, the central government was out of debt and imposed no inland taxes. It existed simply off a tariff on imports and land sales. The Supreme Court was tightly constrained in its exercise of judicial review. It challenged the constitutionality of acts of Congress only twice – in Marbury v. Madison (the Judiciary Act of 1789) and the Dred Scott decision (the right of a slave to challenge his status in a non-slave state when brought there by his master). States and localities in almost all States in the North refused to comply with the Fugitive Slave Act (nullification), either by statue or by civil acts of disobedience, and most strikingly, the Wisconsin legislature and the State Supreme Court in 1854 and 1859 outright challenged the constitutionality of the Act (citing coercion of the states and state officials). South Carolina nullified the Tariff of 1828, citing the improper nature of the tariff, changing it from an ordinary tariff (for revenue collection for the government) to a protectionist tariff (to provide direct funding of “improvements” for the North, as well as other enormous benefits), and claiming it was nothing more than a federal scheme to directly enrich the North at the great expense of the South.

Today, it is taught and it is believed that the “checks and balances” in the American system are only those between the president, Congress, and the Supreme Court. We know about the veto procedure, the ratification process for treaties, appointments (including federal court justices) and judicial review (this last check is not in the constitution actually but a creature of the Supreme Court itself!)  The purpose of our Separation of Powers and our series of checks and balances is to prevent the consolidation of power in any one branch of government and any one group of representatives.  But only a very limited number of Americans understand and appreciate that the greatest check on the consolidation of power comes from the unique design feature of our government established by the States and our Founding Fathers in the conventions and debates creating the Constitution – and that is Federalism.  Federalism is idea that real power is shared by the members of the “federation,” which are the States, with the creature they created (the federal government), which is the reservoir of powers expressly delegated to it by the US Constitution.  Federalism is a “sharing” or “division” of power among sovereigns in order to prevent concentration and tyranny.  The idea is that the government, as a sovereign with very limited and expressly delegated powers, and the States, as sovereigns retaining all other powers of government, will jealously guard their sphere of power and will watch, ever-so-vigilantly, the actions of one another.  What more effective check on government power could there be !!  Sovereign versus sovereign, which is what the term “dual sovereignty” refers to.  Or, as I like to refer to this design feature: “Titan versus Titan” (a reference to Greek mythology).  Alexander Hamilton, in a speech to the New York Ratifying Convention on June 17, 1788, explained it this way: “This balance between the National and State governments ought to be dwelt on with peculiar attention, as it is of the utmost importance. It forms a double security to the people. If one encroaches on their rights they will find a powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits by a certain rivalship, which will ever subsist between them.”

Sadly, this most effective check on consolidation of power in DC has been effectively eroded – mainly at the hands of the US Supreme Court.  The checks from the States on central authority in the form of nullification, interposition, and secession have now been ruled out.  And this is just another way of saying that the federal government can define the limits of its own powers. And that is what the American colonists and ratifiers of the Constitution drafted in Philadelphia in 1787 meant by “absolute monarchy.”

Ask yourself this:  Which branch of government ruled out the essential and natural remedies of nullification, interposition, and secession?  The answer is the US Supreme Court, supporting the ambitious plans of the federal government and improperly relying on Marbury v. Madison (1803) and the Supremacy Clause of the US Constitution for authority. For a State to treat its decisions with less than full support would bring the full resources of the federal government into its backyard. It’s happened before. Andrew Jackson, Abraham Lincoln, Andrew Johnson, Franklin D. Roosevelt, Harry S. Truman, Dwight D. Eisenhower. Rather than interpreting the Constitution, which pretty much is its sole task, the Supreme Court has redefined a new political and government system, one that is quite different from the one entrusted to us by our framers and founders.

When authority taken by the federal government falls outside of the enumerated powers, it makes no sense to ask the federal government to rule on whether the federal government has the power or not. The States, the ones which debated and ratified the Constitution for THEIR benefit, have no umpire on the bench.  As historian Tom Woods points out, if the federal government is allowed to hold a monopoly on determining the extent of its own powers, we have no right to be surprised when it keeps discovering new ones.

So, it is no surprise that the Supreme Court consistently and steadily handed down decision after decision to strip the States’ of their natural remedies against the Titan seeking to subjugate them – the federal government. Again, the Supreme Court is itself a branch of the very government that seeks to benefit from the consolidation of power it wants by weakening the States.  What better way to get the States to calm down and get in line?

Thomas Jefferson was skeptical of the federal judiciary and warned that they had the greatest potential to undermine republican government. In 1823, he wrote: “At the establishment of our Constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions nevertheless become law by precedent, sapping by little and little the foundations of the Constitution and working its change by construction before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life if secured against all liability to account.”

If you believe, as most Americans seem to believe (because of government indoctrination), that States no longer have the rights of nullification, interposition, and secession because of the action of one man, a virtual dictator, Abraham Lincoln, then you must reconcile the fact that no State any longer enjoys a republican form of government, as guaranteed in Article IV. That is, they no longer enjoy a republican form of government under any historical understanding of what such a government is nor under the vision of our founders. That notion has now decayed into a legal fiction.

But if the States are not republics, what are they?  Donald Livingston argues that the answer was given by Alexis de Tocqueville in his assessment of the French Revolution. According to de Tocqueville, the French revolution was intended to overturn the monarchy and return power to the people by creating a republic but in reality, it fundamentally changed nothing. The coercive government of the monarchy was simply replaced by a different type of coercive government.  The monopoly over government and land created by Kings (Divine Right of Kings) is a doctrine that embodies two bodies of the king. This duality is symbolized by this famous phrase: “The King is dead! Long live the King!” The first body of the king was the flesh and blood; the mortal body.  The second body was the monopoly, or the artificial corporation, established by birth-right and familial ties. Both bodies are coercive in nature since they are not “of the people” and can never truly represent them. When de Tocqueville said that the French Revolution fundamentally changed nothing, he meant that all that it did was kill the first body of the king. It left the second body of the king intact, merely changing its name from the “Crown” to the “Republic.” The revolution merely replaced the person of the king with a fictitious “nation-person.” In other words, what was created after the French Revolution was an absolute monarchy without the monarch; a regime that had all the major defects of a monarchy but none of the benefits. The post-French Revolution era of “republics” would increase government centralization beyond the wildest dream of any monarch. The German economist, Hans Hoppe, estimates that before the mid-nineteenth century, monarchs, as bad as they might have been, were never able to extract more than 5-8 percent of the gross national product (GNP) from the people, whereas “republics” have been able to exploit over 60 percent.

In his war to prevent Southern independence, Lincoln and the perversely-named “Republican” Party destroyed the two American institutions that had made true republicanism possible in a region on our continental scale – State nullification and secession. Without these rights, there can be no practical check to centralization and oppression of government, and hence, no practical way to ensure that the People of the several States are guaranteed a republican form of government.

Is it possible to have an exceedingly large republic, such as the size of our current-day United States?  British philosopher David Hume once considered the question of a large republic. He proposed the first model of a large republic in his essay “Idea of a Perfect Commonwealth,” which was published in 1792.  Hume’s model did not physically seek to divide territory up physically into individual sovereigns but rather to decentralize government power so as to preserve the human scale demanded of republican self-government. The question is whether this can realistically be done.

Hume agrees with the republican tradition that “a small commonwealth is the happiest government in the world within itself.” But Hume’s model of a large republic, in contrast to the historically small republic, would be to order the large republic in such a way as to have all the advantages of a little republic. The question is whether Hume’s model is translatable to the real world: Can the size of a republic be expanded without destroying those values unique to republican government (self-government and the rule of law) that require a human scale.

Hume’s idea of a large republic is something of the size of Great Britain or France. (Remember his essay was written in 1792!)  As a comparison, Great Britain is approximately equivalent in size to Wyoming and France is approximately equivalent in size to Texas. In Hume’s model, the republic is divided into 100 small republics, but with a national capital. Each of these small republics is then divided into 100 parishes. The members of each parish meet annually to elect 1 representative. This yields 100 representatives in each small republic’s legislature. The legislature selects from among its members 10 magistrates to exercise the executive and judicial functions of the republic and 1 senator to represent the republic in the national capital. That yields 100 senators, from among which 10 are chosen to serve as the national executive and judiciary.

Laws would be proposed by the national senate and passed down to the provincial republics or ratification. Each republic has one vote regardless of population, and the majority rules. To free the provincial legislature from having to vote on every trivial law, a bill can be sent instead to the ten provincial magistrates in each republic for ratification.

How does Hume’s large republic compare to the “highly-centralized regime” that the United States has become today?  Hume’s republic has 100 senators in the national capital representing the individual States, as we do. But the legislative body representing the nation of individuals is located in the several capitals of the provincial republics. This provides three essential advantages.  First, it provides a better and more republican ratio of representation to population. Hume’s republic is the size of Britain, which in his time had some 9 million people; yet his regionally dispersed legislature jointly yields 10,000 representatives.  [100 x 100].  By contrast, the United States has 305 million people, which is 34 times as many inhabitants. Its representative body contains not 10,000 representatives but only 435 representatives – a number that Congress capped by law in 1911.  Hume’s large republic provides a ratio of 1 representative for every 900 people, and so it is of a republican scale.  This is very important !!  The United States’ system provides 1 representative for every 700,000 people, which is not even remotely within a republican scale.

And if you are thinking that this unrepublican character of the United States can be remedied by abolishing the law setting the cap at 435 and increasing the number of representatives in the US House, you will need to understand that judging by the size of legislatures around the world, 435 is just about the right size for a lawmaking body. Everything in nature has a proper size for optimum functionality. A cell can only grow to a certain size (a certain volume-to-cell-surface ratio) so that it can absorb nutrients, eliminate waste, and respire most efficiently. A jury of 12 is perfectly suited to determine the facts of a case; a jury of 120 would be dysfunctional.  When the first US Congress met in New York in 1789, there were 65 representatives. There was 1 representative for every 60,000 people. James Madison thought that was an inadequate ratio to adequately represent the people in a republic. When the number of representatives was capped at 435 in 1911, the population in the United States was 93,863,000. That means that there was 1 representative for every 215,777 inhabitants. If we were to use the same ratio that was used in 1789 – 1: 60,000 – there would be over 5,000 members in the House of Representatives. This would be impossibly large for a lawmaking body. Size does matter.

So, if the number of representatives in Washington DC cannot be increased as the population increases, then we have clearly reached the point where talk of republican self-government is utterly meaningless.  We are merely a republican in name only. In the not too distant future, the population of the United States will reach 435 million. This would yield one representative for every million persons.  Who could honestly believe a regime under this system could be described as a republic?

The point is that a country can literally become too large for self-government.  It becomes unresponsive to the people because its representatives cannot possibly represent the interests of all its constituents.

If the United States has indeed reached the point of political obesity, then the only remedy would be to downsize. The United States will need to be downsized either through peaceful secession movements or through a division into a number of federative units forming a voluntary commonwealth of American federations – an idea that Thomas Jefferson was fond of.

For the moment, let’s put peaceful secession aside (which would divide the Union into distinct territorial jurisdictions or would create individual, independent sovereigns).  Suppose that the United States adopts such a model as Hume’s large republic. This would require abolishing the House of Representatives in Washington DC (Yay!) and transforming the State legislatures into a joint national legislature. The Senate would propose legislation to be ratified by a majority of the States, each State having one vote.

Consider trying to enact the unpopular legislation passed in 2009 and then 2010 under such a model. Of course, I’m referring to the Bailout bills and the stimulus packages of 2009 and then the Patient Protection and Affordable Care Act (or grossly referred to simply as the “Affordable Care Act’; or aptly named “Obamacare”) of 2010. A strong majority of Americans opposed the bailouts for the monster banks whose corrupt and inept policies caused the financial meltdown in 2009, the economic stimulus packages that they knew wouldn’t work, and Barack Obama’s healthcare plan of some two thousand pages, rushed through after secret meetings and secret deals and with publicly-acknowledged privileges given to some states and not others, and admissions by its leading supporters (Democrats) that they hadn’t even read it.  To this should be added that many believe that Congress has no constitutional authority to bailout businesses, let alone arbitrarily choosing which ones to provide federal aid, nor to impose a national healthcare plan, regardless whether it is good or not and whether or not it would help certain citizens out. Now, had these bills been sent down to the State legislatures for debate and ratification, as required by Hume’s large republic model, their defeat would have been so certain that they probably would never have even been proposed in the first place.

The second advantage presented by Hume’s model is that by dispersing the national legislature among the provincial republics (the smaller republics), he has eliminated the corruption that inevitably comes from putting the House of Representatives and the Senate in the same place. The number of representatives in Washington is 435 in the House, and 100 in the Senate– for a grand total of 535 lawmakers. A majority of this number is only 269. This small number rules 305 million people. And the majority can be even less, since both houses can lawfully operate, and they often do, with a mere quorum. A quorum majority of both houses of Congress is only 135 !!

Consider also that the US Supreme Court, centered in DC, a branch of the federal government, with justices who are appointed according to political and ideological lines – and not for proven understanding and adherence to the Constitution – has usurped the traditional “police powers” of the States, which it exercises for the health, safety (including law enforcement), welfare, education, religion, and morality of its citizens. The police powers exercised by each individual State for the benefit of its own people is the very essence of republican life. Nine unelected Supreme Court justices with life tenure – by only a vote of 5-to-4 – make major social policy for 305 million people. Political issues that are reserved to the States, such as abortion, marriage, and voter integrity laws, have been taken out of the policy arena and magically transformed into “constitutional rights.” This means, in effect, that the Court can rewrite the Constitution at will, entirely by-passing the process specifically provided for in Article V (ratification of any alteration/amendment of the Constitution by a ratification by three-fourths of the States).  Again, to think that five members of a high court can usurp lawmaking authority from the legislature (popularly-elected), can usurp powers from the States, and can transform the meaning and intent of the Constitution from the bench rather than the lawful process specifically put in place for the People themselves to define the limits of their government and we are still a republic is ludicrous.

Dispersing the legislatures among provinces would not necessarily get rid of government corruption, which is one of the biggest problems with a consolidated government. However, it would not exist on the same scale and of the same intensity that we see in DC today. Hume’s national legislature sits jointly in the 100 provincial capitals.  That means that a lobbying interest must deploy a much greater number of lobbyists and over greater distances. In addition, it would be much more difficult for representatives to coordinate with each other to buy and sell votes, as is routinely done in Congress today. With such a large republic, representatives would be more cautious and frugal in spending taxpayer money. After all, the 10,000 dispersed representatives who live in the same neighborhood with their constituents would have to look them in the eye and would have to answer to them.

Third, Hume provides a number of checks to prevent a faction from dominating the whole. If the senate rejects a proposed law, only 10 senators out of 100 are needed to veto that decision and forward the bill to the republics for consideration. Laws thought to be trivial can be sent from the senate to the ten magistrates of the republic for ratification instead of calling on the whole legislature. But only 5 out of 100 provincial representatives are needed to veto this and call for a vote of their legislature. Each (small) republic can veto legislation of another republic and force a vote on the matter by all the republics.

Should the United States be divided up into provincial republics – into a “federation of republics” – in order to provide a true republican form of government to its people?  Thomas Jefferson thought so.  George Kennan, esteemed historian and American diplomat (crafted the US policy of containment with respect to the Soviet Union) also thought so. In his autobiography, Around the Cragged Hill, Kennan argued that the United States has become simply too large for the purposes of self-government. As he argued, the central government can rule 305 million people only by imposing one-size-fits-all rules that necessarily result in a “diminished sensitivity of its laws and regulations to the particular needs, traditions, ethnic, cultural, linguistic, and the like of individual localities and communities.”  Kennan passed away in 2005.  That the lives, property, income, and fortunes of 305 million Americans should be the playthings of an oligarchy in Washington that can act by a majority in Congress of only 269 (and 135 if acting by a quorum) and that the essence of republican life – religion, morals, education, marriage, voting rights, law enforcement, and social welfare – should be decided by nine unelected Supreme Court justices is something no free, liberty-minded people should tolerate.

Of course, there is the other option – secession and the formation of individual republics, not held together in federation form. It is said that secession should and must be ruled out because it causes war and it will necessarily involve bloodshed.  But that is not necessarily true. Of course it will depend on the ambitions of the administration in Washington DC, in particular, the president.  We would hope that we should never again suffer the likes of another Abraham Lincoln. But there are many examples of states that have seceded peacefully, including a number of Baltic states from the former Soviet Union. Norway peacefully seceded from Sweden in 1905 and Singapore did so from the Malaysian federation in 1965.  Eventually, if things don’t change and freedom’s flame is close to being extinguished, secession may be the remedy to save the American experiment. Additionally, it may be the only way to save the US Constitution – by putting it in the hands of a people who will take care of it and be much more vigilante with its limited powers and its checks and balances than Americans have been.  When 11 Southern States seceded from the Union in 1860-61 and formed the Confederate States of the American, they, as a Union, established a new constitution. This would be the third constitution that Americans made for themselves, and in most respects, it was far superior to the one of 1787 – they backed out of.  It included several provisions which would have made it much more difficult for the central government to concentrate and usurp power. Had Lincoln respected the States’ right of self-determination (as proclaimed in the Declaration of Independence), we would have had the unique opportunity to compare, side-by-side, how each Union of States (North or South) fared under their constitutions.  The point is that secession gave the People (acting in State conventions) the opportunity to correct the defects in the Constitution that caused them to be oppressed by government. The question will be: when that time comes (and maybe it is already here), will we have the Will to Secede!!  Already, between 19-34% of Americans (ranked by State), now believe we would be better if States peacefully left the Union.

Donald Livingston closes his discussion of “American Republicanism” with this summary: “When a healthy cell grows too large, it divides into two cells. It is the cancerous cell that no longer knows how to stop growing. That artificial corporation, created by the individual States over two centuries ago, called the “United States” has, over time, metastasized into a cancerous growth on a federation of continental scale, sucking republican vitality out of States and local communities. The natural chemotherapy for this peculiar condition is and can only be some revived form of State interposition, nullification, or secession. If these are rejected out of hand as heresies (as our nationalist historians have taught since the late nineteenth century), then we can no longer, in good faith, describe ourselves as enjoying a republican style of government.

American secession

 

Again, I encourage everyone to read the entire book – Rethinking the American Union for the Twenty-First Century.  Aside from Donald Livingston, accomplished authors and academics Kent Masterson Brown, Dr. Thomas DiLorenzo, Dr. Marshall DeRosa, Yuri Maltsev, and Rob Williams also contributed chapters.

 

References:

Donald Livingston, ed., Rethinking the American Union for the Twenty-First Century, Pelican Publishing Company, 2013.

Poll:  One in Four of Americans Want Their State to Secede, but Why?  –   http://blogs.reuters.com/jamesrgaines/2014/09/19/one-in-four-americans-want-their-state-to-secede-from-the-u-s-but-why/

Poll: A Quarter of Americans Want Their State to Secede –   http://talkingpointsmemo.com/livewire/poll-seccession

Poll:  One in Four of Americans Want Their State to Secede –   http://dailycaller.com/2014/09/19/poll-one-in-four-americans-want-their-state-to-secede/

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