There is growing talk among, and about, people in some States who want to secede from the United States. This has statists and the people who believe the myth created by Lincoln cultists that Lincoln saved the union claiming that there is no right to reclaim the powers delegated to the central government. The truth is Lincoln destroyed the union and replaced the limited federal government created by the Founding Fathers with a consolidated government and set it on course to become the bloated, intrusive, centralized government we live under today.
This article will not examine the reasons people in various States want to reclaim the powers their States previously delegated to the union. That subject requires a far larger document than this one to examine in any meaningful way.
The subject at hand is the legal right of the States to withdraw from the union and dissolve the political ties binding them to the States that remained in that organization as well as the fundamental change in the relationship of the States to the central government caused by the War Between the States.
THE STATES FORMED THE UNION
Lincoln tried to justify forcing the States that withdrew from the union to return by the preposterous claim that the union created the States rather than the historical fact that the States created the union. Lincoln cultists continue to make this ridiculous claim.
Lincoln and his idolaters claim the Declaration of Independence created the union. This claim ignores the fact that the Declaration of Independence states quite clearly, “That these United Colonies are, and of right ought to be, Free and Independent States… and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.”
Note the Declaration says the colonies are by rights States, plural. It does not say they are a State, singular. It claims sovereignty of the individual States not of a singular State composed of subservient political subdivisions. So the first document created by the Founding Fathers clearly contradicts Lincoln’s assertion.
The original thirteen States became internationally recognized as sovereign, independent States when they won their independence from Great Britain. The Treaty of Paris in Article 1 recognized the former colonies as individual, independent sovereign States. It reads:
Article 1:
His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states, that he treats with them as such, and for himself, his heirs, and successors, relinquishes all claims to the government, propriety, and territorial rights of the same and every part thereof.
The text is clear. The former colonies were not a sovereign and independent State, singular, but “free sovereign and independent States”, plural. The former colonies were then thirteen States, or countries not a single State.
Those who argue as Lincoln did that the States were never States outside of the Union and only have those powers expressly granted them by the union have to ignore historic fact or try to explain it away. The original thirteen States were by international law “free sovereign and independent states”.
Lincoln was a slick trial lawyer and as such well-practiced in oral deception. Cohen’s Law For Lawyers states: What really matters is the name you succeed in imposing on the facts — not the facts themselves. Lincoln imposed the name rebellion on the States withdrawal from the union and his apologists try to maintain that deception.
But, the Treaty of Paris isn’t the only historical fact that exposes Lincoln’s contention as false. Federalist 45 makes clear that the Founders considered the federal government the creation of the States and its only powers those delegated to it by the States.
Madison, “the Father of the Constitution” assured the people that the federal government was only the deputy or agent of the States possessing only the powers delegated to it by the States. Nothing in the writings of the Founders believed the federal government created the States and delegated powers to them.
Lincoln and his apologists would have us believe that Lincoln knew more about the powers delegated to the federal government than Madison who wrote the document. It appears that trial lawyer Lincoln was a practitioner of the trial lawyers’ doctrine; “If the facts are on your side argue the facts. If the law is on your side argue the law. If neither the facts nor the law are on your side . . . lie.”
We can also look at the name of the union the States created. Under the Westphalian system created by the Peace of Westphalia, signed in 1648, the major European countries agreed to respect the principle of territorial integrity. States became the primary institutional agents in an interstate system of relations. States were countries. In the eighteenth century when educated people used the word State they meant an independent country. By naming the organization the Founders formed, “The United States”, they were recognizing that the organization was a group of countries organizing in a pact or group to secure certain mutual benefits.
After the War Between the States the word “state” took on the added meaning of a political subdivision under the rule of a higher power. However, even today, the word means a sovereign country to most English speaking people.
For instance, when the Palestinian people demand their own State, they are demanding their own sovereign country and not a political subdivision under the control of the Israeli State. Our own State Department does not deal with the 50 subservient states that are under the thumb of the central government. Our State Department deals with other countries (States).
This concept is reinforced by the wording used in the Constitution and other official government papers. The official documents produced by the government of the union always use the plural when the union is acting on behalf of all the States. That is they say “the United States ARE doing thus and so.” After the War Between the States the usage of the singular started being used until it became the exclusive usage. In other words, government documents after the War said “the United States is doing thus and so” rather than “are doing thus and so.”
This grammatical shift is significant because it indicates the change in status of the States and the central government. The union was no longer a voluntary organization of sovereign States. The states were now the subjects of the ruling consolidated government and held in that position by force of arms.
Another fact that shows the absurdity of Lincoln’s claim that the union created the States is that North Carolina and Rhode Island did not join the union until after it was up and running and Mr. George Washington was elected President and serving in that office. From the date the government, under the Articles of Confederation was dissolved until states joined the union, they were separate countries unaffiliated with the other countries that had joined the group.
This fact was recognized by the union and Congress who imposed duties on a variety of goods produced in North Carolina and Rhode Island when these goods were brought into the United States just like goods imported from any other foreign state or kingdom. The union also threatened to impose higher tonnage and tariff duties on ships registered in these independent States. The Senate of the new union even passed a bill that would have banned all commercial intercourse between Rhode Island and the United States.
Had these States already been part of the union even without ratifying the Constitution as Lincoln claimed, these acts would have been unconstitutional.
THE CONSTITUTION IS A CONTRACT
Lincoln cultists and other statists like to point out that the Constitution is a contract between the States and that States may only get out of the contract if every party to the contract agrees that a State or States may get out of the contract. To make this claim they have to work around the fact that Virginia, New York and Rhode Island only ratified the Constitution with the condition that they could later withdraw from the union if they chose to do so.
In order to explain away this fact some in the Lincoln cult claim that these conditions were not conditions. They claim that only unconditional ratifications were acceptable to the union. They base this claim on a letter from James Madison to Alexander Hamilton stating that the Congress would not accept conditional ratifications.
As powerful as Mr. Madison was, he was only one member of Congress. He didn’t have the unilateral power to accept or reject ratifications submitted by the States.
Mr. Madison was also an astute political realist. Ideally all the States would join the new union unconditionally. The political reality was different. Politicians frequently accept conditions they earlier said they would not accept in order to get most of what they want.
Although Rhode Island was inconsequential to the success of the union, without New York, Virginia, and North Carolina there was no realistic expectation the new union would hold together for more than a very short time. Without these powerful States, South Carolina and Georgia would be separated from the other union members by Virginia and North Carolina, and New England members would be separated from Pennsylvania by New York. The members of the union would be separated by independent nations that were at least as powerful as the individual members of the union.
The reality also included the fact that Georgia, South Carolina, and Maryland had more in common both culturally and economically with Virginia than they had with the New England or Mid-Atlantic States. Pennsylvania and New Jersey had more in common with New York than with New England. The odds were good that without New York, Virginia and North Carolina, the union would break apart in very short order.
Faced with this political reality, it is no wonder the Congress accepted the conditional ratifications Virginia and New York passed.
Add to these political realities Mr. Madison and the supporters of ratification faced, is the fact that Madison and the other Founding Fathers believed that ratification did not preclude a State from withdrawing from the union at a later date. Madison clearly said as much in a speech to the Virginia ratification convention of 1788: In response to fears that Virginia might be giving up too much sovereignty by joining the union, Mr. Madison said; “If we be dissatisfied with the national government, if we choose to renounce it, this is an additional safeguard to our defense.”
Clearly, in James Madison’s mind, the Constitution he wrote did not prohibit the States from renouncing the central government and reclaiming the powers they delegated to that organization. Lincoln and his apologists never mention this assurance from the man who wrote the Constitution that a State could later renounce membership in the central government, i.e., secede from the union.
The conditional ratifications are also a death blow to the claim that the contract between the States can only be voided if all parties agree.
A contract only becomes a contract when all parties agree to all parts of the contract. Prior to all parties accepting all parts of the contract it is an offer not a contract. When one party agrees to the contract but with conditions, the agreement becomes a counteroffer not an executed contract. The parties making the original offer at that point have the option of accepting the counteroffer, rejecting it, or making a counter, counteroffer. If the parties making the original offer accept the counteroffer it becomes a contract with the conditions in place as part of the contract binding the parties to all parts of the contract, including the terms put forth in the counteroffer.
This was the case with the union’s accepting the contingent ratifications from Virginia, New York, and Rhode Island. The conditional ratifications were counteroffers to the Congress’ original offer to the States. The acceptance of the counteroffers made the conditions part of the contract between the States.
Congress’ acceptance of these counteroffers made them a part of the contract. Under Article IV of the Constitution, the rights enjoyed by one state are enjoyed by all the States in the union. The right to withdraw from the union, should a State decide it is in the best interest of that State, is therefore enshrined in the contract between the States. All the parties to the contract agreed on that point when they accepted the conditional ratifications of those three States.
Under the theory that the Constitution is a contract between the States, Lincoln and the Northern States violated the contract by refusing to accept the Southern States peaceful withdrawal from the union. Unless one wishes to argue that the War Between the States voided the Constitutional contract, the right of any State to withdraw from the union is still an operative part of that contract.
THE RIGHT TO SECEED WAS GENERALLY RECOGNIZED
The northern States were the first to threaten secession. Starting in 1800, the New England States were seriously threatening to secede. Jefferson’s election brought calls for various New England States to secede. When Jefferson made the Louisiana Purchase in 1803, more New England politicians and newspapers joined the call for secession. In 1803 U.S. Senator from Massachusetts, Timothy Pickering wrote; “I will rather anticipate a new confederacy, exempt from the corrupt and corrupting influence and oppression of the aristocratic Democrats of the South.”
At that time there was no suggestion that the States had no right to secede. All arguments against secession recognized the States had that right, but rather, that secession was unwise at that time for one reason or another. In fact, President Jefferson, in a letter to W. Crawford dated June 20, 1816 said that “If any state in the Union will declare that it prefers separation… to a continuance in union… I have no hesitation in saying, ‘let us separate.’
New England Federalists continued to threaten to secede including the threat to secede during the War of 1812. During the war the Federalist Massachusetts Governor went so far as to secretly send word to England to broker a separate peace accord between England and the seceded New England confederacy. No one claimed that the States didn’t have the right to withdraw from the union, and make a separate peace with England.
Prior to the War Between the States secession was recognized as a right possessed by the individual States. From1825 until 1841 the U.S. Military Academy at West Point taught the Constitution to the cadets using a text written by William Rawle, of Philadelphia, who had been the U.S. District Attorney for Pennsylvania under the Washington Administration. Although, in his text Rawle strongly argued against secession, he recognized it as a right Chapter 32, of that textbook, entitled On the Permanence of the Union, contains the following text:
The Union is an association of the people of republics; its preservation is calculated to depend on the preservation of those republics. The people of each pledge themselves to preserve that form of government in all. Thus each becomes responsible to the rest, that no other form of government shall prevail in it, and all are bound to preserve it in every one. …If a faction should attempt to subvert the government of a state for the purpose of destroying its republican form, the paternal power of the Union could thus be called forth to subdue it.
Yet it is not to be understood, that its interposition would be justifiable, if the people of a state should determine to retire from the Union…
It depends on the state itself to retain or abolish the principle of representation, because it depends on itself whether it will continue a member of the Union. To deny this right would be inconsistent with the principle on which all our political systems are founded, which is, that the people have in all cases, a right to determine how they will be governed.
Alexander Hamilton, the Founding Father who was most in favor of a strong central government, did not support the concept of a central government that assumed powers not specifically delegated to it by the proposed Constitution. He believed that the proposed Constitution gave the central government no power to infringe on the rights not specifically enumerated as delegated to it. Because of this he believed the Bill of Rights was unnecessary. He wrote:
I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
Obviously, even Hamilton didn’t believe that the central government that the States were creating had any power not specifically enumerated in that document. According to him, those who would later argue that the central government had powers not specifically enumerated in the Constitution were “men disposed to usurp”. It is, therefore, illogical to believe that Hamilton would have supported using force of arms to keep States from withdrawing from the union since no such power is enumerated in the Constitution or in any State’s ratifying document.
Patrick Henry speaking against ratification of the proposed Constitution said: “The honorable gentleman who presides told us that, to prevent abuses in our government, we will assemble in Convention, recall our delegated powers, and punish our servants for abusing the trust reposed in them. O sir, we should have fine times, indeed, if, to punish tyrants, it were only sufficient to assemble the people!”
Both Governor Randolph and James Madison had earlier assured the delegates to Virginia’s ratification convention that the State could later hold another convention and reclaim the powers the State had previously delegated to the central government. Reclaiming the delegated powers is another way of saying the State could dissolve the political bands which connected them to the other States in the union.
Patrick Henry wasn’t buying that assurance. He prophetically said: “Will the oppressor let go the oppressed? Was there even an instance? Can the annals of mankind exhibit one single example where rulers overcharged with power willingly let go the oppressed, though solicited and requested most earnestly? The application for amendments will therefore be fruitless. Sometimes, the oppressed have got loose by one of those bloody struggles that desolate a country; but a willing relinquishment of power is one of those things which human nature never was, nor ever will be, capable of.”
Lincoln, himself, when he was in the House of Representatives, said there was a right to secede. The Congressional Records for 1847 quote Lincoln as having said, “Any people whatever have the right to abolish the existing government and form a new one that suits them better.” On January 12, 1848, Lincoln said, “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.”
I can find no record of him ever explaining what brought about his change of mind, but within days of the beginning of his regime he no longer held this view.
CONCLUSION
So neither the Founding Fathers nor the people of the original States thought that the Constitution forbade a State from dissolving the political bands that tied it to the other States. Nor did the generations immediately following the founding generation believe that. There is no legal prohibition against secession. The only basis for denying the States their right to dissolve the political bands connecting them to the other States is the invasion, defeat, and occupation of the States that exercised that right by “men disposed to usurp”.
The idea that the union should be held together by force of arms was repugnant to even the most enthusiastic proponents of a stronger central government than existed under the Articles of Confederation. The anti-Federalists fears were well founded. Indeed, they were prophetic. The destruction of the union and the replacing it with of a consolidated central government created the very thing the Founders feared, and sacrificed blood and treasure to fight against; an all-powerful central government that is bloated and intrusive and tramples the rights of the people.
When Lincoln invaded, conquered and occupied the States that exercised their right to reclaim the powers they had delegated to the union, he created a new relationship between the States and the central government. By force of arms he established the supremacy of the federal government over the formerly sovereign states.
This new relationship between the central government and the States, established by Lincoln, gave other “men disposed to usurp” the power to assume ever more power not delegated to the central government by the States. Because of this new unbridled power of the central government, in 1973, the U.S. Supreme Court could ignore the Constitution that its members took an oath to uphold, by striking down the laws of all 50 states against killing babies in the womb. By 2012 the central government was so powerful that it could demand by force of law that people purchase a specific product whether they want it or not.
As Thomas Jefferson said; “When the people fear their government, there is tyranny; when the government fears the people, there is liberty.”
It isn’t realistic to think that the current regime is any less despotic than the Lincoln regime. So it is highly unlikely that the regime will honor any State’s right to peacefully reclaim the powers it delegated to the central government and dissolve the political bands which connected them to the other States in the union. However, that does not mean that the States do not have that right. It just means that it is one more right that has been usurped.
“Published originally at EtherZone.com : republication allowed with this notice and hyperlink intact.”