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/

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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

A Proposed State Sovereignty Resolution Re-Asserting the Tenth and Second Amendments

Don't Tread on Me (#3)

by Diane Rufino, February 21, 2018

The following is a proposed State Sovereignty Resolution that I wrote and proposed to my legislators in the North Carolina General Assembly. I feel very strongly that the General Assembly should make it clear that the people’s right to have and bear arms is safe and secure in our state.

NORTH CAROLINA STATE SOVEREIGNTY RESOLUTION

A Bill Announcing the Intention to Nullify any and all Unconstitutional federal Gun Control Bills that the State of North Carolina and its People believe to be an Infringement of their Natural Rights of Self-Defense and Self-Protection as Recognized by the Second Amendment

The State of North Carolina asserts the following

A warm attachment to the Union of the States, to which it had pledged its loyalty in accordance with the terms of the Constitution, the compact that created it, and to that end, it has a duty to watch over and oppose every infraction of those principles which constitute the basis of that Union, because only a faithful observance of them can secure its existence and the public happiness;

Its recognition and respect for the lawful and constitutional process for altering the terms and meaning of the Constitution, including the amendments contained in the Bill of Rights, which are the two procedures listed in Article V (the Amendment Process);

The Second Amendment recognizes that a well-regulated Militia, being necessary to the security of a free State, shall not be infringed;

The Second Amendment also recognizes that the right of the people to keep and bear Arms, shall not be infringed;

The Second Amendment recognizes the natural right of Self-Defense and Self-Protection, both on behalf of the State (“a free State,” by the way) and of the individual;

The Second Amendment doesn’t grant these rights but rather, it protects them, without condition or limitation, from the reaches of the federal government, especially the US Congress and its law-making power;

The phrase “SHALL NOT BE INFRINGED” is clear and instructional on its face;

To affirm the point above further and to support it greater, the States specifically included a Preamble to explain the reason for the ten amendments to the new Constitution (amendments that were demanded by them and without them would have jeopardized and prevented the ratification of that document. The Preamble reads: “The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution”;

The Preamble to the Bill of Rights makes abundantly clear that the Constitution established a federal government of limited powers, and that in those limited objects of government, the federal government is limited even further by the ten amendments added (ratified by 3/4 of the States) on Dec. 15, 1791;

Just as the Supremacy Clause asserts the supremacy of the federal government with respect to the powers delegated to it, which are “few and defined” (Federalist No. 45, written by the same man, James Madison, who authored the Constitution), the Tenth Amendment and the Preamble to the Bill of Rights assert the supremacy of the States with respect to the powers reserved to them;

That one of the reserved powers of the State is the responsibility, the duty, to prevent unconstitutional federal laws, policies, executive actions, and court opinions from infringing on the rights of its people;

The Second Amendment has a very purposeful history; the rights recognized were not rights pulled out of thin air but rather stem from Natural Law and the concept that certain rights are endowed by a Creator (inherent in our very humanity);

Our Founders were not talking about hunting when they demanded that the Second Amendment be added to the Constitution; they were concerned about the freedom of the individual, and also the populace in general, to be armed in the face of a powerful and aggressive government – one that may send out a standing army in times of peace, one that may try to enact laws for gun and ammunition confiscation, and one that may eventually try to outright or effectively disarm its people;

The history of England, and indeed the history of many other nations, teaches us that when individuals are unable to defend themselves and their rights, they essentially have no rights. Rather, they have temporary permission from government to exercise rights until they somehow pose a serious threat to those in power.

James Madison once said: “If Men were angels, no government would be necessary.”  But what if it was the federal government that was not the angel?  The Second Amendment is the contingency plan in such a case;

James Madison also wrote (in Federalist No. 28): “If the representatives of the People betray their constituents, there is no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government”;

In addition to the natural right to defend one’s life and property, as well as those of family members and perhaps fellow citizens who are vulnerable,  there are other components of self-defense and self-protection other than the actual confrontation and neutralization of a violent intruder or attacker, that the people recognize – one being DETERRENCE;

Gun-Free Zones, homes without effective firearms, and individuals of sound mind disenfranchised in their right to have and bear arms serve as attractive targets for criminals and evil-intentioned, mentally-disturbed individuals;

The State of North Carolina, under the Tenth Amendment and according to compact principles, reserves the right to determine when the federal government has over-stepped its constitutional bounds with respect to legislation on gun control;

The State of North Carolina will NOT comply with any federal gun control law or policy that hinders or burdens its citizens in their free exercise of the natural right of self-defense and self-protection recognized by the Second Amendment;

In furtherance of its DUTY to prevent unconstitutional or abusive acts of the federal government on its citizens, and in furtherance of its DUTY to prevent the God-given and Natural rights of its People, the State of North Carolina will interpose using whatever means necessary to ensure that such gun control laws or policies (including judicial opinions), or any laws, policies, or court opinions for that matter in violation of the Constitution generally or the Bill of Rights specifically are not enforced in the State.

** ** ** ** ** ** ** ** ** ** ** ** **

I posted a closely-related article, with commentary on the Second Amendment, prior to this one –  https://forloveofgodandcountry.com/2018/04/01/keep-the-second-amendment-secure-in-north-carolina-2/

- 2018 (gray shirt, March 24, 2018) - BEST

Our Modern-Day Interposer, Judge Roy Moore

JUDGE ROY MOORE - with his statue

by Diane Rufino, January 25, 2018

I just wrote an article explaining the doctrine of Interposition and how vital a remedy it is against federal tyranny. (“Interposition: The Duty to Say “NO!”). In that article, I wrote: “Our challenge is to stand up as a people, and as individual States, to the government officials, the government bodies, and yes, even federal judges who are violating, ignoring, eroding, or otherwise re-interpreting the Constitution our Bill of Rights. Each unconstitutional act usurps the powers delegated or reserved to the People and the States. Nature’s Law supersedes man’s law. Every failure to resist the tyranny posed by an unconstitutional act tightens the noose around freedom’s neck.”

Explaining Interposition, I wrote

Since the Tenth Amendment cannot enforce itself, interposition is one of the doctrines that allows the States and the People to stand up for the rights that are reserved to them. Right now, the federal government has a monopoly over the meaning and scope of its powers. Congress makes the laws, the president signs the laws and enforces then, and the courts review them for constitutionality. It wasn’t always this way. The federal courts were originally only supposed to render an “opinion” to the other branches. They were to take that opinion under advisement and amend the particular law or alter their conduct. The “check” that the “opinion” offered was that it was public; once the States found out the opinion, as sovereigns and as the co-parties to the compact known as the US Constitution, they always had the option to nullify and refuse to enforce a law or policy that the court deemed as unconstitutional. But the judicial branch made sure that its power was much more substantial than rendering a mere opinion. The federal monopoly was established when Chief Justice John Marshall handed down the Marbury v. Madison opinion in 1803. Essentially the decision asserts that the Supreme Court is the tribunal tasked with interpreting the Constitution and as such, it’s “opinions” are not really “opinions” at all but binding decisions. Whatever the men in robes decide is the meaning and the intent of the Constitution IS the meaning and intent and its decisions are final and binding.

But rights and liberties are never secure when men and women have the power to interpret while also being motivated by political opinions, personal passions, etc. The Tenth Amendment MUST not be left to the federal government monopoly to ignore or re-interpret as it sees fit.

The remedy always available to those who hold the reserved powers is interposition – to recognize that certain acts are unconstitutional and exceed delegated powers (and hence are null and void and legally unenforceable) and then to take the necessary steps to make sure that they are NOT enforced. To allow them to be enforced is allowing government usurpation.

We saw an act of Interposition in 2010 or so when the state of Arizona took on the federal government. The Arizona state government was fed up with the fact that the Obama administration refused to enforce immigration laws. The State was being overly burdened by illegal immigration and without enforcement of federal laws or even an immigration policy, the problem was increasingly getting worse. So, the Arizona legislature passed a law giving its state law enforcement powers to determine which immigrants were undocumented and to require employers to do the same in the hiring process (e-verify). Without the ability to work in the state or to be free of law enforcement checks, perhaps the immigrants would leave. The Arizona legislature and Governor Jan Brewer interposed for the benefit of their citizens and for the proper functioning of the State. Quickly, however, Obama sued the State. How dare it interpose.

And then we saw the case of Judge Roy Moore in Arkansas. He dared to stand up to judicial tyranny.

It’s been a sad several years in America. Several decades actually. For 8 years, we had a president whose approach to government was that if he didn’t get what he wanted, “I’ve got a pen and I’ve got a phone.” When he didn’t get amnesty for illegals (The Dream Act), he acted by Executive Order to establish the DACA program (which is temporary amnesty for illegals, ages 18 and younger, brought to the US by their parents). It was UNCONSTITUTIONAL. He created a law which is the sole domain of the legislative branch. In fact, his action went directly against the actions of the legislature since Congress would not pass the Dream Act. He misled – no, LIED – to the American people with the Affordable Care Act, which eventually became law as a new tax. The law is UNCONSTIUTTIONAL as exceeding the bounds of the taxing power (the mandate is a “punishment” for not signing up for Obamacare and that is one of the classifications that the taxing power is not allowed to be used for). He refused to allow the federal government to enforce DOMA (Defense of Marriage Act), claiming that marriage is between any two consenting people, even same-sex. The Supreme Court would rule that the States have no right or power to define marriage narrowly so as to only be between a man and a woman. In other words, the Court handed down an UNCONSTITUTIONAL opinion by usurping a traditional power reserved to the States by the Tenth Amendment. Similarly, Obama threatened and attempted to coerce the states of North Carolina over bathrooms according to biological gender. He said that civil rights law would be “interpreted” (even though there was no court history to back him up and the law includes clear definitions) to include protection for transgenders in the term “it is unlawful to discriminate against an individual because of his or her sex.”

The Civil Rights Act of 1964 was enacted “To enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations, to authorize the attorney General to institute suits to protect constitutional rights in public facilities and public education, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity (EEOC), and for other purposes.” (intro of the bill). The Act provides that “It is unlawful to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin.”

In the definition section of the Act, it provides: “(k) The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions…”

Obama used the IRS to subdue the voice of Tea Party and other conservative groups by not allowing them to form into organizations and therefore participate in elections, he obstructed justice on too many matters to list here, and colluded with the DNC and Hillary Clinton and her campaign to use the full powers of the federal government to prevent Donald Trump from becoming president. His disdain for the US Constitution, for the Rule of Law, and for the rightful role of government was so palpable that the Tea Party arose. In fact, judging by the turn-out and the energy in 2016 and the election of Trump, it is abundantly clear that the American people are, at heart, Tea Partiers. They want limited government. But yet the media and the liberal left (the no-brainers) are still willing to give Obama a pass on all his acts of absolute tyranny.

We have Senator Chuck Schumer who intentionally shut down the government over a matter that nothing to do with the government funding bill and over a class of individuals who have no legal recognition in this country nor claim to protection under any of our laws. We have Nancy Pelosi who admits not only that she shouldn’t have to actually read a bill before signing it but that the Constitution means nothing to her. As if ignorance wasn’t her only defining characteristic, she also had the absolute gall to refer to a major tax cut for middle class Americans (one that has real meaning and real tangible benefits to most Americans) as “crumbs” (because, after all, we aren’t as wealthy as her – ie, we all didn’t have the opportunity to enrich ourselves while serving in office, AND we don’t have a government slush fund to cover our expenses) and to take all House Democrats out to a swanky Italian feast to celebrate the fact that they had just stopped paying our men and women serving in uniform, including at the dangerous Mexican border. And we have Rep. Maxine Waters who uses her office NOT to serve in the capacity she was elected to but rather to cry “racism” at every chance she gets, to continually label the president as racist, incompetent, rude, etc and to try to have him impeached on these unimpeachable claims. We have other representatives also so colossally incompetent, useless, and reckless.

But Judge Moore, a man who singlehandedly stood up to judicial tyranny and tried to set the Constitution right, is vilified. A man like him was not elected to DC. Democrats want Obama back, and in fact, they wanted someone worse (more corrupt) – Hillary Clinton. But Judge Moore was not suitable.

Just how did Judge Roy Moore interpose? In 1868, the Fourteenth Amendment was added to the US Constitution. I did not write “In 1868, the Fourteenth Amendment was passed” because it never did legally pass. And it wasn’t an amendment as much as it was “punishment” for the Southern states. The North forced it on the subjugated southern states. In fact, the amendment is not legitimate at all under the required process outlined in Article V. But for a moment, let’s suppose that it was. The amendment was intended as a codification of the Civil Rights Law at the time, the Civil Rights Act of 1866.

The Civil Rights Act of 1866, enacted on April 9, 1866, was the first federal law to define citizenship and affirm that all citizens are equally protected by the law. It was mainly intended to protect the civil rights of persons of African descent born in or brought to the U.S., in the wake of the American Civil War. In other words, it was intended to over-ride the portion of the Dred Scott decision of 1857 that said that persons of African descent (all blacks) were never intended to be citizens and therefore could not be so, and as such were not entitled to the protections of the US Constitution. The Civil Rights Act was actually enacted by Congress in 1865 but was vetoed by President Andrew Johnson. In April 1866, Congress again passed the bill as a companion to, and in support of, the Thirteenth Amendment. Although President Johnson again vetoed it, a two-thirds majority in each chamber overcame the veto and the bill became law. Rep. John Bingham (R-OH) and some other congressmen argued that Congress did not yet have sufficient constitutional power to enact this law and then the idea came to memorialize the Civil Rights Act in constitutional amendment form and force the former confederate states to ratify it (as a condition to being re-admitted to the Union. Note, they had been admitted to the Union implicitly by including them in the ratification process for the Thirteenth Amendment. But then they were “kicked out” again for the sole purpose of conditioning their re- re-entry on ratification of the Fourteenth Amendment !!]

So, assume the Fourteenth Amendment’s purpose (stated purpose in fact) was to provide citizenship for the newly-freed slaves and to recognize that as citizens, they also have the same rights and privileges as every other US citizen and they are entitled to equal protection under the laws. When the slaves were freed, the North wanted to make sure that the South couldn’t tacitly continue to treat them as slaves by denying them the rights and privileges necessary to assume an equal and meaningful place in society. Secretly, the North just wanted to make sure the freed slaves stayed in the South. The Supreme Court, however, found a way to use this amendment to usurp the original meaning of the Bill of Rights and to strip the States of their powers. Beginning in the 1920s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to “incorporate” most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.

Prior to the ratification of the Fourteenth Amendment and the development of the “Incorporation doctrine,” the Supreme Court in 1833 held in Barron v. Baltimore that the Bill of Rights applied only to the federal, but not any state governments. Even years after the ratification of the Fourteenth Amendment, the Supreme Court in United States v. Cruikshank (1876) still held that the First and Second Amendments did not apply to state governments. [See Richard Aynes’ law journal article on the meaning and intent of the Fourteenth Amendment]. But the temptation to strip the States of its ability to remain free from the constraints of the Bill of Rights was too great. And little by little, areas historically reserved to the States to regulate have been taken away by nine men in black robes.

For example, with respect to the First Amendment: The guarantee against an Establishment of Religion was incorporated against the States in 1947 (Everson v. Board of Education – the infamous “Wall of Separation” case); the guarantee of one’s Free Exercise of Religion was incorporated against the States in 1940 (Cantwell v. Connecticut); the guarantee of Freedom of Speech was incorporated in 1925 (Gitlow v. New York); the guarantee of Freedom of the Press was incorporated in 1931 (Near v. Minnesota); the guarantee of Freedom of Assembly was incorporated in 1937 (DeJonge v. Oregon); and the guarantee of the Right to Petition for Redress of Grievances was incorporated against the States in 1963 (Edwards v. South Carolina). Now, most Americans might think that it’s a good thing to guarantee that the States can’t infringe these essential liberty rights, but history has shown that the Supreme Court has actually stripped individuals of their rights to self-governance in their States and localities by the Incorporation Doctrine. The federal courts are using it to establish a one-size fits all model across the United States. Each state will feel, and BE the same. There used to be the notion that each state had their own “character,” their own social environment and their conditions of living, as determined by those who live in that “backyard.” And those who don’t like the character or condition of their “backyard” are free to move to a state that is more to their liking. State borders are supposed to mean more than mere physical boundaries and confines of legal jurisdiction.

Alabama Supreme Court Judge Roy Moore understood the unconstitutionality of the Incorporation Doctrine. He understood the decisions amounted to judicial over-reach and judicial tyranny. And so, in 2001, when the first of two lawsuits was brought demanding that he take down the a 5,280-pound (2,400 kg) block of granite with the Ten Commandments engraved on it, which was placed in front of the Alabama state courthouse, he stood his ground. In the case Glassroth v. Moore (Fed District Court, 2003) [and the companion case Maddox and Howard v. Moore], the court agreed with the plaintiffs, lawyers who were concerned that their clients might feel they would not be treated fairly if they didn’t agree with the Judeo-Christian tenets, and held that the statue is an impermissible establishment of religion, violates the First Amendment as incorporated against the state of Alabama by the Fourteenth Amendment, and therefore had to be removed. Judge Moore refused. He appealed to the Federal Court of Appeals for the 11th Circuit but the panel of judges affirmed the lower court decision. Again Judge Moore refused to take the statue down. If the federal government wanted to erase any connection to the Ten Commandments at any federal court because God forbid it might convince someone that the government is establishing a national religion, then that was within the government’s right. But according to Moore, if the state of Alabama wanted to have the Ten Commandments at their courthouse to remind them “of a higher law,” to remind them of the moral foundation of law, and to also remind them of the provision including in the very preamble to the state constitution “that in order to establish justice we must invoke ‘the favor and guidance of almighty God,’” it had the right to do so under the rightful interpretation of the US Constitution and Bill of Rights, including the Fourteenth Amendment.

The other judges of the Alabama Supreme Court finally stepped in and had the statue taken away from the courthouse, and Judge Moore was removed from office for his refusal to comply with the federal court decision.

Indeed, as Mike Scruggs put it: “A great opportunity to insist on both States’ Rights and Religious Liberties was forfeited when the Governor and most of the Alabama Supreme Court failed to back Judge Moore in his resistance to federal judicial tyranny.”

All tyranny needs is people to do nothing.

Our government in Washington DC is full of people who don’t know how to say NO or even how to conduct themselves as government officials in accordance with the rightful authority given to them. Day upon day, we allow government tyranny, and especially, judicial tyranny. Do we even realize how many of our rights have been burdened over the years? We say we are “Free” but freedom implies the ability to exercise our God-given rights without condition and without government intervention or regulation. How “freely” are we really able to exercise our rights? Think on that as you self-censor, as you hide the cross around your neck in certain situations, as you decide not to put a bumper sticker on your car, as you decide not to say a prayer before your meal because someone might see you doing so, as you watch 1/3 of your hard-earned money get siphoned off by the government to spend predominantly on items that are unconstitutional, as you break into a sweat when April 15 comes around and you question whether you have saved all your receipts and if you have listed everything on your taxes so that you aren’t audited, and as you lose your job because someone in some cubicle somewhere was offended by something you said, posted in your private cubicle, wrote on FB, or something you wore around your neck or embossed on a tote bag.

Judge Moore may have been an unfavorable candidate, but it is most likely that the allegations against him were fabricated. He may be a flawed individual, but he is the RIGHT kind of individual for government. He is an unashamed, unapologetic, and undeterred interposer. Thomas Jefferson was a flawed man, as the left loves to point out, but he gave us the most consequential and meaningful document that any man has produced for mankind – the Declaration of Independence. The world has never been the same.

References:

VIDEO – President Obama, in a press conference, stating “I have a pen and I have a phone.” Referenced on YouTube: https://www.youtube.com/watch?v=G6tOgF_w-yI

Richard L. Aynes, “On Misreading John Bingham and the Fourteenth Amendment,” Yale Law Journal, October 1993, Pg. 57. Referenced at: http://www.constitution.org/lrev/aynes_14th.htm

Title VII of the Civil Rights Act of 1964 – https://www.eeoc.gov/laws/statutes/titlevii.cfm

“The Short History of the Battle Over the Ten Commandments in Alabama.” http://www.wsfa.com/story/421482/short-history-of-the-battle-over-the-ten-commandments-in-alabama

Lawrence “Mike” Scruggs, The Un-Civil War: Shattering the Myths; 2011, Universal Media (Charlotte, NC), Chapter 6.

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

NULLIFICATION (in 500 words)

NULLIFICATION - the Rightful Remedy (chalkboard)

by Diane Rufino, Oct. 30, 2017

Imagine Hillary Clinton had won the 2016 presidential election and enough democrats won so that she enjoys a friendly Congress. And imagine she made good on a campaign promise and had a comprehensive federal gun control law enacted to essentially deprive ordinary Americans of their right to own and bear firearms. The law would clearly be unconstitutional. The Bill of Rights prevents the Congress from enacting laws that burden the second amendment guarantee.

Would the American people be doomed to be oppressed in their rights by the law?  In theory, an unconstitutional law should never have any force of law in a free society. But how do we prevent its enforcement?

That is where Nullification and Interposition come in.

Thomas Jefferson articulated the doctrine of Nullification and called it the “Rightful Remedy” to oppose unconstitutional action by the federal government. And James Madison explained that Nullification, together with Interposition, is the duty of every state in such an event. These remedies stem from the federal nature of our government system – the division of power between the states and the federal government and the understanding and duty of each sovereign to jealously and judiciously guard its sphere of power. Sovereign v. Sovereign; Titan v. Titan.  Nullification is the act of a state acknowledging that an act of the federal government is an abuse of the power delegated to it under the Constitution. To be clear, an act of government that exceeds delegated authority is automatically null and void. And therefore has no force of law and technically cannot be enforced. But who is going to tell the government that it can’t enforce its laws? The federal courts – the third, unbounded branch of the very federal government that forever seeks to enlarge its powers? That is where the states come in. After all, when the government assumes powers it was not delegated, it naturally usurps them from the states and from the people themselves. Interposition is the inherent right of a state to take whatever action necessary to prevent the enforcement of an unconstitutional law or policy (or court decision) on its citizens. Such may take the form of state laws preventing the enforcement, disbarment of judges who uphold the law, or the arrest of any official who attempts to enforce the law.

Although Jefferson and Madison are credited with these doctrines of nullification and interposition, the doctrines have been known for generations before their time; they are implied in the very nature of “law” and “enforcement.” That is why, despite the objections of states’ rights opponents, the doctrines of nullification and interposition supersede the Constitution and are indeed rightful remedies.

Without these rights, according to our founding fathers, the states (and the people) “would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them.” In other words, it is the most powerful remedy to prevent government tyranny on people who have recognized inherent and civil rights.