secession

Let’s Make a Deal

Let's make a deal

The last deal negates all of the concessions made in the other deals — for those of us who will choose to live in Free States.

How Libertarians Ought to Think about the Constitution

I’m deeply grateful to Timothy Sandefur for causing me to change my mind about the constitutionality of secession. I used to believe that secession is permissible under the Constitution, and that the forcible suppression of an attempt to secede doesn’t negate the right to secede (see this and this, for example). I still believe that secession is permissible, but for a wholly different reason, to which I’ll come in due course.

My story begins with a post at Sandefur’s blog, Freespace, in which he writes:

[I] once believed that secession was legally justified. I thought slavery was evil, of course; that much is obvious. But I had read the Kentucky Resolutions, and that persuaded me that the Constitution is basically a treaty among sovereign states, who retain the right to leave the union if they want. It’s like a club, right? If you’re in a club, and you decide to leave the club, you should be free to go—even if you choose to do that for an immoral reason, right?

Then I started delving into these issues. I read The Federalist Papers, particularly number 15. I read Lincoln’s July 4, 1861, address to Congress. I read the Lincoln-Douglas Debates. I read Calhoun’s speeches and Douglass’ speeches and the Webster-Hayne debate. I read John Marshall’s decisions. I read Madison, and especially the debate between Madison and Henry at Richmond. And I read the arguments of other scholars—Jaffa, McCoy, Banning, Amar, Farber. These things changed my mind. Turns out it’s not a club. And it turns out slavery can’t be considered a separate question. (“P.S.: A word to my libertarian friends who think secession is constitutional,” Freespace, January 28, 2014)

The last link in the quoted text points to a piece by Sandefur that appeared in Reason Papers several years ago: “How Libertarians Ought to Think about the U.S. Civil War” (Vol. 28, Spring 2006, pp. 61-83). There, Sandefur quotes several writers who had a hand in the drafting and ratification of the Constitution (James Madison, James Wilson, Alexander Hamilton, and John Marshall), and says this:

These sources reveal how well understood was the central fact that the Constitution was a government of the whole people of the United States, not a league or treaty of states in their corporate capacities, as the compact theory would have it. Contrary to Calhoun’s later claim that “the States, when they formed and ratified the Constitution, were distinct, independent, and sovereign communities,”30 the reality is that, in Marshall’s words, federal sovereignty

proceeds directly from the people; is ‘ordained and established’ in the name of the people. . . . It required not the affirmance, and could not be negatived, by the State governments. The constitution, when thus adopted, was of complete obligation, and bound the State sovereignties. . . . The government of the Union, then . . . is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit . . . . [T]he government of the Union, though limited in its powers, is supreme within its sphere of action.31

… The federal government is directly vested with sovereignty of the whole people of the United States. Secession is not, therefore, like a person who chooses to cancel his membership in a club—because the states are not in the “club” to begin with. Only “We the People” are members of the federal club, and only the “people” which created it can change it, by altering the contours of that “people” through amendment, or a new Constitutional Convention. So, while the whole people may allow a state out of the union, or may even dissolve the Constitution entirely, a state cannot claim on its own the authority to withdraw from the union. Lincoln put it with dry understatement when he noted that advocates of secession were “not partial to that power which made the Constitution, and speaks from the preamble, calling itself ‘We, the People.’”33

These sources reveal that in 1787, both the Federalists and Anti-Federalists recognized that the U. S. Constitution was just that—a constitution for a nation, not a league of sovereign states. And, if these sources are not enough, as Akhil Reed Amar points out, “no major proponent of the Constitution sought to win over states’ rightists by conceding that states could unilaterally nullify or secede in the event of perceived national abuses. The Federalists’ silence is especially impressive because such a concession might have dramatically improved the document’s ratification prospects in several states.”34 “[I]f a more explicit guard against misconstruction was not provided,” wrote Madison in 1831, “it is explained . . . by the entire absence of apprehension that it could be necessary.”35 …

… We have seen that the nature of federal sovereignty under the Constitution makes unilateral secession illegal. Since the Constitution is a law binding the People, and not a league of states, states have no authority to intervene between the people and the national government. If the people of a state wish to leave the union, they may not do so unilaterally, but must obtain the agreement of their fellow citizens—or they must rebel in a legitimate act of revolution. (pp. 70-74, emphasis added)

There’s more, but the quoted passages seem to cover the main points of Sandefur’s case against the constitutionality of secession.

It’s my understanding that the Constitution — if it is law — is not just law, but positive law: “statutory man-made law, as compared to ‘natural law’ which is purportedly based on universally accepted moral principles.” Sandefur’s rejection of secession as a contravention of the Constitution therefore strikes me as odd, inasmuch as Sandefur disdains legal positivism. (Just search his site, and you’ll see.)

This led me to the possibility that the Constitution isn’t “real” law, but just a legal mechanism through which state actors can impose their will on citizens. For enlightenment, I turned to Lysander Spooner, whose The Unconstitutionality of Slavery (1860) is cited in Sandefur’s paper (p. 63). Why would an anarchist and believer in natural law, as Spooner was, care a whit about the authority of the Constitution? After all, Spooner’s No Treason (1867) opens with this:

The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago. And it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. Furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now. Most of them have been dead forty, fifty, sixty, or seventy years. And the constitution, so far as it was their contract, died with them. They had no natural power or right to make it obligatory upon their children. It is not only plainly impossible, in the nature of things, that they could bind their posterity, but they did not even attempt to bind them. That is to say, the instrument does not purport to be an agreement between any body but “the people” then existing; nor does it, either expressly or impliedly, assert any right, power, or disposition, on their part, to bind anybody but themselves. Let us see. Its language is:

We, the people of the United States (that is, the people then existing in the United States), in order to form a more perfect union, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

It is plain, in the first place, that this language, as an agreement, purports to be only what it at most really was, viz., a contract between the people then existing; and, of necessity, binding, as a contract, only upon those then existing. In the second place, the language neither expresses nor implies that they had any right or power, to bind their “posterity” to live under it. It does not say that their “posterity” will, shall, or must live under it. It only says, in effect, that their hopes and motives in adopting it were that it might prove useful to their posterity, as well as to themselves, by promoting their union, safety, tranquillity, liberty, etc.

Note well Spooner’s description of the Constitution as a contract (i.e., a compact) — entered into by certain persons at a certain time, for certain purposes. This suggests a possibility not entertained in Sandefur’s Reason Papers essay, namely, that the Constitution is neither a compact between States (as sovereign entities) nor a law adopted by “the people,” but a contract entered into by a fraction of the populace that became binding on the whole populace through state power.

I’ll return to that possibility after I explain how Spooner could defer to the very Constitution that he clearly disdained. The answer is found in Chapter II of The Unconstitutionality of Slavery:

Taking it for granted that it has now been shown that no rule of civil conduct, that is inconsistent with the natural rights of men, can be rightfully established by government, or consequently be made obligatory as law, either upon the people, or upon judicial tribunals—let us now proceed to test the legality of slavery by those written constitutions of government, which judicial tribunals actually recognize as authoritative.

In making this examination, however, I shall not insist upon the principle of the preceding chapter, that there can be no law contrary to natural right; but shall admit, for the sake of the argument, that there may be such laws. I shall only claim that in the interpretation of all statutes and constitutions, the ordinary legal rules of interpretation be observed. The most important of these rules, and the one to which it will be necessary constantly to refer, is the one that all language must be construed “strictly” in favor of natural right. The rule is laid down by the Supreme Court of the United States in these words, to wit:

“Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.” [United States vs. Fisher, 2 Cranch, 390.]

It will probably appear from this examination of the written constitutions, that slavery neither has, nor ever had any constitutional existence in this country; that it has always been a mere abuse, sustained, in the first instance, merely by the common consent of the strongest party, without any law on the subject, and, in the second place, by a few unconstitutional enactments, made in defiance of the plainest provisions of their fundamental law.

Translation: The Constitution is a fact. State actors have the power to enforce it. The text of the Constitution doesn’t authorize slavery. Slavery is against natural law. Therefore, it accords with natural law to enforce the Constitution against slavery.

What is natural law? Here’s Spooner, writing in Chapter I of the Unconstitutionality of Slavery:

The true and general meaning of it, is that natural, permanent, unalterable principle, which governs any particular thing or class of things. The principle is strictly a natural one; and the term applies to every natural principle, whether mental, moral or physical. Thus we speak of the laws of mind; meaning thereby those natural, universal and necessary principles, according to which mind acts, or by which it is governed. We speak too of the moral law; which is merely an universal principle of moral obligation, that arises out of the nature of men, and their relations to each other, and to other things—and is consequently as unalterable as the nature of men. And it is solely because it is unalterable in its nature, and universal in its application, that it is denominated law. If it were changeable, partial or arbitrary, it would be no law. Thus we speak of physical laws; of the laws, for instance, that govern the solar system; of the laws of motion, the laws of gravitation, the laws of light, &c., &c.—Also the laws that govern the vegetable and animal kingdoms, in all their various departments: among which laws may be named, for example, the one that like produces like. Unless the operation of this principle were uniform, universal and necessary, it would be no law.

Law, then, applied to any object or thing whatever, signifies a natural, unalterable, universal principle, governing such object or thing. Any rule, not existing in the nature of things, or that is not permanent, universal and inflexible in its application, is no law, according to any correct definition of the term law.

What, then, is that natural, universal, impartial and inflexible principle, which, under all circumstances, necessarily fixes, determines, defines and governs the civil rights of men? Those rights of person, property, &c., which one human being has, as against other human beings?

I shall define it to be simply the rule, principle, obligation or requirement of natural justice.

This rule, principle, obligation or requirement of natural justice, has its origin in the natural rights of individuals, results necessarily from them, keeps them ever in view as its end and purpose, secures their enjoyment, and forbids their violation. It also secures all those acquisitions of property, privilege and claim, which men have a natural right to make by labor and contract.

Such is the true meaning of the term law, as applied to the civil rights of men.

Spooner goes on and on, but never defines natural law concretely. Natural law, like natural rights, arises from human coexistence, and does not precede it. But Spooner — like most theorists who address natural law and natural rights — treats them as if they were eternal, free-standing Platonic ideals or mysterious essences. Those less inclined to mysticism, like Sandefur, strive vainly to find natural rights in the workings of human evolution. (Aside: Sandefur and I have gone several rounds on the issue of natural rights: here, here, here, here, and here; see also this.)

If there is any kind of natural law, it is the Golden Rule:

I call the Golden Rule a natural law because it’s neither a logical construct (e.g., the “given-if-then” formulation discussed in the preceding post) nor a state-imposed one. Its long history and widespread observance (if only vestigial) suggest that it embodies an understanding that arises from the similar experiences of human beings across time and place. The resulting behavioral convention, the ethic of reciprocity, arises from observations about the effects of one’s behavior on that of others and mutual agreement (tacit or otherwise) to reciprocate preferred behavior, in the service of self-interest and empathy. That is to say, the convention is a consequence of the observed and anticipated benefits of adhering to it.

Is this a recipe for chaotic moral relativism? No. Later, in the post just quoted, I note that there’s a common, cross-national, cross-cultural, and cross-religious interpretation of the Golden Rule which comes down to this:

  • Killing is wrong, except in self-defense. (Capital punishment is just that: punishment. It’s also a deterrent to murder. It isn’t “murder,” muddle-headed defenders of baby-murder to the contrary notwithstanding.)
  • Various kinds of unauthorized “taking” are wrong, including theft (outright and through deception). (This explains popular resistance to government “taking,” especially when it’s done on behalf of private parties. The view that it’s all right to borrow money from a bank and not repay it arises from the mistaken beliefs that (a) it’s not tantamount to theft and (b) it harms no one because banks can “afford it.”)
  • Libel and slander are wrong because they are “takings” by word instead of deed.
  • It is wrong to turn spouse against spouse, child against parent, or friend against friend. (And yet, such things are commonly portrayed in books, films, and plays as if they are normal occurrences, often desirable ones. And it seems to me that reality increasingly mimics “art.”)
  • It is right to be pleasant and kind to others, even under provocation, because “a mild answer breaks wrath: but a harsh word stirs up fury” (Proverbs 15:1).
  • Charity is a virtue, but it should begin at home, where the need is most certain and the good deed is most likely to have its intended effect.

What does all of this mean for secession? Here it is, from the beginning and by the numbers:

1. The Constitution was a contract, but not a contract between “the people.” It was a contract drawn by a small fraction of the populace of twelve States, and put into effect by a small fraction of the populace of nine States. Its purpose, in good part, was to promote the interests of many of the Framers, who cloaked those interests in the glowing rhetoric of the Preamble (“We the People,” etc.). The other four of the original thirteen States could have remained beyond the reach of the Constitution, and would have done so but for the ratifying acts of small fractions of their populations. (With the exception of Texas, formerly a sovereign republic, States later admitted weren’t independent entities, but were carved out of territory controlled by the government of the United States. Figuratively, they were admitted to the union at the point of a gun.)

2. Despite their status as “representatives of the people,” the various fractions of the populace that drafted and ratified the Constitituion had no moral authority to bind all of their peers, and certainly no moral authority to bind future generations. (Representative government is simply an alternative to other types of top-down governance, such as an absolute monarchy or a police state, not a substitute for spontaneous order. At the most, a minimal, “night watchman” state is required for the emergence and preservation of beneficial spontaneous order, wherein social norms enforce the tenets of the Golden Rule.)

3. The Constitution was and is binding only in the way that a debt to a gangster who demands “protection money” is binding. It was and is binding because state actors have the power to enforce it, as they see fit to interpret it. (One need look no further than the very early dispute between Hamilton and Madison about the meaning of the General Welfare Clause for a relevant and crucial example of interpretative differences.)

4. The Constitution contains provisions that can be and sometimes have been applied to advance liberty. But such applications have depended on the aims and whims of those then in positions of power.

5. It is convenient to appeal to the Constitution in the cause of liberty, as Spooner did, but that doesn’t change the fact that the Constitution was not and never will be a law enacted by “the people” of the United States or any State thereof.

6. Any person and any government in the United States may therefore, in principle, reject the statutes, executive orders, and judicial holdings of the United States government (or any government) as non-binding.

7. Secession is one legitimate form of rejection, though the preceding discussion clearly implies that secession by a State government is morally binding only on those who assent to the act of secession.

8. An  act of secession may be put down — through legal process or force of arms — but that doesn’t alter the (limited) legitimacy of the act.

9. Given the preceding, any act of secession is no less legitimate than was the adoption of the Constitution.

10. The legitimacy of an act of secession isn’t colored by its proximate cause, whether that cause is a desire to preserve slavery, or to escape oppressive taxation and regulation by the central government, or to live in a civil society that is governed by the Golden Rule. The proximate cause must be evaluated on its own merits, or lack thereof.

I close by quoting from an earlier post of mine:

[G]overnmental acts and decrees have stealthily expanded and centralized government’s power, and in the process have usurped social norms [the civilizing products of spontaneous order]. The expansion and centralization of power occurred in spite of the specific limits placed on the central government by the original Constitution and the Tenth Amendment. These encroachments on liberty are morally illegitimate because their piecemeal adoption has robbed Americans of voice and mooted the exit option. And so, liberty-loving Americans have discovered — too late, like the proverbial frog in the pot of water — that they are impotent captives in their own land.

Voice is now so muted by “settled law” (e.g., “entitlements,” privileged treatment for some, almost-absolute control of commerce) that there a vanishingly small possibility of restoring constitutional government without violence. Exit is now mainly an option for the extremely wealthy among us. (More power to them.) For the rest of us, there is no realistic escape from illegitimate government-made law, given that the rest of the world (with a few distant exceptions) is similarly corrupt….

Having been subjected to a superficially benign form of slavery by our central government, we must look to civil society and civil disobedience for morally legitimate law….

When government fails to protect civil society — and especially when government destroys it — civil disobedience is in order. If civil disobedience fails, more drastic measures are called for:

When I see the worsening degeneracy in our politicians, our media, our educators, and our intelligentsia, I can’t help wondering if the day may yet come when the only thing that can save this country is a military coup. (Thomas Sowell, writing at National Review Online, May 1, 2007)

In Jefferson’s version,

when wrongs are pressed because it is believed they will be borne, resistance becomes morality.

The Constitution may be a legal fiction, but — as I’ve said — it’s a useful fiction when its promises of liberty can be redeemed.

That’s how this libertarian (conservative) thinks about the Constitution.

More about “Secession Made Easy”

Read “Secession Made Easy,” which addresses inter-State secession, that is, the annexation of a portion of one State by another State. Then consider the table below. It includes some moves not mentioned in the earlier post, and assesses the potential gains accruing to the GOP if parts of some States were shifted to neighboring States.

Secession made easy - table

The baseline is the current lineup of U.S. Senate seats, governorships, and State legislatures.  The potentially big gains for the GOP are found in the Senate. Those gains would be worth the (possible) loss of a single governorship, because the addition of nine GOP Senate seats would shift control of Congress to the GOP. (This assumes that the House remains indefinitely under GOP control for some years to come, which may be a heroic assumption.) Further, the GOP would continue to control about 3/5 of State legislatures — a big advantage when it comes to congressional redistricting.

In any event, some denizens of Blue States would become citizens of Red States — a prize in itself.

Secession Made Easy

It seems that the “Red” areas of several “Blue” States are agitating to secede from those States. It seems, also, that there is a way to secede that might pass legal scrutiny: the seceding portion of a State (the Red counties of Blue-dominated Maryland, for instance) hooks up with a more congenial State (West Virginia, for instance). Half a loaf certainly would be better than none if you’re a conservative in a conservative region of California, Colorado, Maryland, or Michigan — to name a few of the many possibilities.

The upshot of a half-a-loaf strategy with respect to secession would be … what? Some Red States would become Redder and some Blue States would become Bluer. Would the balance of political power be affected? Consider some possibilities:

  • California/Nevada — Northern California plus Nevada could push Nevada into Red territory. A plus for the GOP in the U.S. Senate and control of Nevada’s government.
  • Colorado/Kansas/Utah — Merging eastern Colorado into Kansas and western Colorado into Utah wouldn’t change the political landscape, but the ex-Coloradans would be happier.
  • Delaware/Maryland/Virginia/West Virginia — Two mergers here: southern Delaware and eastern Maryland into Virginia, western Maryland into West Virginia. Virginia would become more reliably Red; West Virginia, almost Deep Red. Pluses for the GOP in the U.S. Senate and control of the governments of Virginia and West Virginia.
  • Illinois/Ohio — Moving southern Illinois into Ohio would make Ohio more reliably Red.
  • Michigan/Wisconsin — If Wisconsin were to annex Michigan’s upper peninsula (and perhaps the northern part of the lower peninsula) it would become firmly Red. Perhaps a tossup, given Michigan’s occasional Reddish tinge, but the ex-Michiganders would be happier.

Those are the obvious possibilities; there may be others.

The problem with all of this, of course, is that Democrats will do the math and fiercely resist any such rearrangements.

But nothing venture, nothing gain. In other words, go for it!

Be sure to read the follow-up post, here.

Related posts:
How to Think about Secession
Greed, Cosmic Justice, and Social Welfare
Positive Rights and Cosmic Justice
Secession
The Interest-Group Paradox
Is Statism Inevitable?
Utilitarianism vs. Liberty
Fascism and the Future of America
Secession Redux
Negative Rights, Social Norms, and the Constitution
A New Cold War or Secession?
Rights, Liberty, the Golden Rule, and the Legitimate State
The Real Constitution and Civil Disobedience
The Census of 2010: Bring It On
The Near-Victory of Communism
A Declaration of Independence
Tocqueville’s Prescience
First Principles
The Shape of Things to Come
The Real Burden of Government
Zones of Liberty
The Constitution: Original Meaning, Corruption, and Restoration
A Conversation with Uncle Sam
The Illusion of Prosperity and Stability
Estimating the Rahn Curve: Or, How Government Inhibits Economic Growth
The Deficit Commission’s Deficit of Understanding
The Bowles-Simpson Report
The Unconstitutionality of the Individual Mandate
The Bowles-Simpson Band-Aid
Does the Power to Tax Give Congress Unlimited Power?
Does Congress Have the Power to Regulate Inactivity?
Re-Forming the United States
The Southern Secession Reconsidered
A Declaration of Civil Disobedience
The Repealer
Estimating the Rahn Curve: A Sequel
Constitutional Confusion
Reclaiming Liberty throughout the Land
More Evidence for the Rahn Curve
Secession, Anyone?
Obamacare, Slopes, Ratchets, and the Death-Spiral of Liberty
Another Thought or Two about the Obamacare Decision
Obamacare and Zones of Liberty
Keynesianism: Upside-Down Economics in the Collectivist Cause
Secession for All Seasons
A New Constitution for a New Republic
A Zone of Liberty in the Making?
The Price of Government, Once More
America: Past, Present, and Future
Restoring Constitutional Government: The Way Ahead

Restoring Constitutional Government: The Way Ahead

Despite the narrowness of Barack Obama’s victory last November, there is much cause for despair by the remnant of liberty-loving Americans. Given the broad and bipartisan dependency of Americans on the welfare state, the overthrow of that state by an electoral revolution seems unlikely.

The entrenchment of the welfare state also means the entrenchment of the regulatory state. The two go hand-in-hand; both are born of economic illiteracy by way of power-lust. To put it another way, both are tools of “scientific” governance, which has no place for liberty, which is voluntary — and mutually beneficial — social and economic intercourse.

With that preamble in mind, let us consider the options (not all of which are mutually exclusive):

1. Business as usual — This will lead to more and more government control of our lives and livelihoods, that is, to less and less freedom and prosperity (except for our technocratic masters, of course).

2. Rear-guard action — This option is exemplified by the refusal of some States to expand Medicaid and to establish insurance exchanges under the Affordable Care Act. This bit of foot-dragging doesn’t cure the underlying problem, which is accretion of illegitimate power by the central government. Further, it can be undone by fickle voters and fickle legislatures, as they succumb to the siren-call of “free” federal funds.

3. Geographic sorting — The tendency of “Blue” States to become “bluer” and “Red” States to become “redder” suggests that Americans are sorting themselves along ideological lines. As with rear-guard action, however, this tendency — natural and laudable as it is — doesn’t cure the underlying problem: the accretion of illegitimate power by the central government. Lives and livelihoods in every State, “Red” as well as “Blue,” are controlled by the edicts of the legislative, executive, and judicial branches of the central government. There is little room for State and local discretion. Moreover, much of the population shift toward “Red” must be understood as opportunistic (e.g., warmer climates, right-to-work laws) and not as an endorsement of “Red” politics. (There is a refinement of this option that I call “Zones of Liberty,” which also holds limited promise. Another variation, the Free State Project, is similarly unpromising.)

4. Civil disobedience — Certainly called for, but see option 5.

5. Underground society and economy — Think “EPA-DOL-FBI-IRS-NSA,” and then dismiss this as a serious option for most Americans.

6. A negotiated partition of the country — An unlikely option (discussed in this post and in some of the posted linked to therein) because “Blue” will not countenance the loss of control over millions of lives and livelihoods.

7. Secession — This is legal and desirable — as long as the New Republic of free states is truly free — but (a) it is likely to be met with force and therefore (b) unlikely to attract a critical mass of States.

8. Coup — Suggested several years ago by Thomas Sowell:

When I see the worsening degeneracy in our politicians, our media, our educators, and our intelligentsia, I can’t help wondering if the day may yet come when the only thing that can save this country is a military coup.

Military personnel (careerists, in particular) are disciplined, have direct access to the tools of power, and many of them are trained in clandestine operations. Therefore, a cadre of properly motivated careerists might possess the wherewithal necessary to seize power. But a plot to undertake a coup is easily betrayed. (Among other things, significant numbers of high-ranking officers are shills for the regulatory-welfare state.) And a coup, if successful, might deliver us from a relatively benign despotism into a decidedly malign despotism. But given the nation’s present trajectory, a coup is our best bet for the restoration of liberty and prosperity under a government that is true to the Constitution.

Related reading:
Mark Thiessen, “The People Have Spoken … and They Must Be Punished,” AEIdeas, November 7, 2012
Jeffrey Lord, “Twinkicide: Death by Liberalism,” The American Spectator, November 20, 2012
Bill Vallicella, “A Case for Voluntary Segregation,” Maverick Philosopher, November 20, 2012
Patrick J. Buchanan, “Stirrings of Secession,” Taki’s Magazine, November 30, 2012
Gary Genelin, “On Secession: An Analysis of Texas v. White,” American Thinker, January 10, 2013

Related posts (listed chronologically):
How to Think about Secession
Greed, Cosmic Justice, and Social Welfare
Positive Rights and Cosmic Justice
Secession
The Interest-Group Paradox
Is Statism Inevitable?
Utilitarianism vs. Liberty
Fascism and the Future of America
Secession Redux
Negative Rights, Social Norms, and the Constitution
A New Cold War or Secession?
Rights, Liberty, the Golden Rule, and the Legitimate State
The Real Constitution and Civil Disobedience
The Census of 2010: Bring It On
The Near-Victory of Communism
A Declaration of Independence
Tocqueville’s Prescience
First Principles
The Shape of Things to Come
The Real Burden of Government
Zones of Liberty
The Constitution: Original Meaning, Corruption, and Restoration
A Conversation with Uncle Sam
The Illusion of Prosperity and Stability
Estimating the Rahn Curve: Or, How Government Inhibits Economic Growth
The Deficit Commission’s Deficit of Understanding
The Bowles-Simpson Report
The Unconstitutionality of the Individual Mandate
The Bowles-Simpson Band-Aid
Does the Power to Tax Give Congress Unlimited Power?
Does Congress Have the Power to Regulate Inactivity?
Re-Forming the United States
The Southern Secession Reconsidered
A Declaration of Civil Disobedience
The Repealer
Estimating the Rahn Curve: A Sequel
Constitutional Confusion
Reclaiming Liberty throughout the Land
More Evidence for the Rahn Curve
Secession, Anyone?
Obamacare, Slopes, Ratchets, and the Death-Spiral of Liberty
Another Thought or Two about the Obamacare Decision
Obamacare and Zones of Liberty
Keynesianism: Upside-Down Economics in the Collectivist Cause
Secession for All Seasons
A New Constitution for a New Republic
A Zone of Liberty in the Making?
The Price of Government, Once More
America: Past, Present, and Future

Secession for All Seasons

REVISED 11/07/12

I do not want my liberty (or yours) to depend on the preferences of voters in places like California, Massachusetts, New York, and Vermont. Nor should my liberty (or yours) be hostage to the outcome of a presidential election, to the vagaries of Supreme Court rulings, or to a filibuster-proof cabal of leftists in the U.S. Senate.

It is not supposed to be that way. (See the The Federalist Papers and the Constitution of the United States.) The last time that the presidency of the United States was in the hands of someone who gave a damn about liberty (Ronald Reagan), he did not have enough support in Congress to do more than chisel at the edges of federal power. Now, the GOP-controlled House of Representatives can only try to block Barack Obama’s statist initiatives — and he will go around the House, by issuing unconstitutional executive orders.

In “Secession, Anyone?” I suggested the formation of the Free States of America. The FSA could be built upon Red-Red States. A Red-Red State meets three criteria: (1) its electoral votes have gone to the Republican presidential candidate in the last four elections; (2) its governorship and its legislature will remain in the hands of Republicans for at least two more years (Nebraska’s “nonpartisan” legislature is here counted as Republican); and both of its U.S. Senate seats are held by Republicans (and will be for at least the next two years).  There are 13 Red-Red States:

(If the southeast quadrant of that map resembles an earlier union of disaffected States, so be it. Secession and slavery are separate and separable issues.)

With the fertile ground afforded by those 13 States, it should be possible to create a new republic — one that is bound by a restored Constitution.

When? Sooner rather than later. Sooner because with Democrats in control of the White House and the Senate, the egregious governmental acts of the past four years will not be reversed. Therefore, all who remain subjects of the United States will suffer the consequences of those egregious acts: economic stagnation and rationed health care being two of the more salient consequences.

How? By insisting on the constitutional right of every State to withdraw from the union known as the United States.

Getting out would not be a simple thing, by any means, and there would be a price to pay (e.g., less-free trade between the USA and the FSA; a more costly defense, per capita). But it seems to me that the left ought to be ecstatic about the prospect of controlling a nation — even a somewhat diminished one — while meeting less resistance. Not only would the Red-Red States be gone, but surely a lot of conservatives in Blue States would emigrate to the FSA. What could be more enticing to a leftist than the opportunity to issue edicts at will?

What I am suggesting, of course, is a negotiated secession — a treaty of division, if you will. Do not rule it out. The alternative is worse.

More to come.

Related posts:
How to Think about Secession
Secession
A New, New Constitution
Secession Redux
A New Cold War or Secession?
The Real Constitution and Civil Disobedience
A Declaration of Independence
Zones of Liberty
The Constitution: Original Meaning, Corruption, and Restoration
A Conversation with Uncle Sam
Re-Forming the United States
The Southern Secession Reconsidered
A Declaration of Civil Disobedience
Our Perfect, Perfect Constitution
Reclaiming Liberty throughout the Land
Secession, Anyone?

Secession, Anyone?

As a denizen of the People’s Republic of Austin, I “relate” to this piece by Will Wilkinson:

…Lorrie Moore, a professor of English at the University of Wisconsin-Madison and fiction writer of note, reports that the acrimonious recall campaign has set brother against brother from Eau Claire to Kenosha:

Despite the assertion by journalist David Brooks (and others) that Americans live in more like-minded communities than ever before and are therefore cut off from values and opinions at variance with their own, more than a year later Wisconsin’s recall of its Governor and several legislators is now said to have pitted neighbor against neighbor. It is being called “a civil war,” and as in our American Civil War some family members are not talking to other family members. Despite a history of bipartisanship, people have chosen sides (as midwesterners tend to do in divorce; not for them the pseudo-sophisticated friends-with-all approach). Tales of confrontation abound: A driver with a “Recall Walker” bumper sticker might be tailed on the highway then passed in the adjacent lane by someone holding up a “Fuck the Recall” sign.

…Trust and a convincing imitation of geniality keep the public institutions of the upper Midwest running relatively smoothly. One hopes the discord brought upon the Badger State by moneyed outsiders bent on proving partisan points dies down after the vote is in, but I’m afraid this sort of fight will become increasingly common in so-called “swing states” as Americans continue to polarise along partisan lines.

The Pew Research Center’s “2012 American Values Survey” finds that Americans have never been more polarised, at least not since polarisation has been measured. Here’s a picture of the extent of the partisan divide:

….

America is dotted with hundreds of islands of concentrated liberalism, thanks to its largely publicly-funded university system. In Wisconsin, for example, it is not at all unusual to hear the state capital called “the People’s Republic of Madison”, on account of the university and its attendant politics. The role of universities in the story of American polarisation seems to me under-appreciated. America’s college towns facilitate within-state sorting according to political affinity by offering temperamentally liberal Wisconsinites or Georgians or Texans attractive places to live among fellow bleeding hearts, but without having to go too far from home. Big state universities also act as magnets drawing “foreign”, out-of-state academics, artists and their wannabe students away from their natural habitats on the coasts….

Now, as partisan polarisation increases nationwide, the town-gown divide inevitably grows more stark and hostile. The denizens of our nation’s inland archipelago of people’s republics grow politically further and further from the surrounding citizenry, whose taxes and tuition keep college-town bookstores in Bataille [link added]….

Regarding the partisan divide and the Pew survey, Arnold Kling says ” I do not think that this will end well.”

It could end quite well — if enough politicians at the State level would muster the guts to do the right thing, which is to secede en bloc. What would a Free States of America look like? Possibly like this:

The States in red went for G.W. Bush in 2000 and 2004. I have omitted three other twice-Bush States — Nevada, Colorado, and Virginia — because they went for Obama in 2008 by margins of greater than 5 percentage points. I would welcome Nevada, Colorado, and Virginia into the fold. New Mexico (which went for Bush in 2004) would be welcome, too, for the sake of territorial integrity. (The other once-Bush States are Iowa, which is suspect because of its attachment to ethanol, and New Hampshire, which (sad to say) is trending “blue.”)

What about the bastions of “liberalism,” like Austin? Well, without the support of a central government that underwrites and encourages its fads and foibles, it would become a saner, freer place as its “liberals” gradually emigrate to friendlier climes.

I am serious. If you doubt me, read these posts, in which I address secession and some of the central government’s excesses that legitimate it:
How to Think about Secession
Secession
A New, New Constitution
Secession Redux
A New Cold War or Secession?
The Real Constitution and Civil Disobedience
A Declaration of Independence
Zones of Liberty
The Constitution: Original Meaning, Corruption, and Restoration
A Conversation with Uncle Sam
Re-Forming the United States
The Southern Secession Reconsidered
A Declaration of Civil Disobedience
Our Perfect, Perfect Constitution
Reclaiming Liberty throughout the Land

Not-So-Random Thoughts (I)

Secession

Ilya Somin, writing at The Volokh Conspiracy, on secession:

The US Constitution, of course, is one of many where secession is neither explicitly banned or explicitly permitted. As a result, both critics and defenders of a constitutional right of secession have good arguments for their respective positions. Unlike the preceding Articles of Confederation, the Constitution does not include a Clause stating that the federal union is “perpetual.” While the Articles clearly banned secession, the Constitution is ambiguous on the subject.

Even if state secession is constitutionally permissible, the Confederate secession of 1861 was deeply reprehensible because it was undertaken for the profoundly evil purpose of perpetuating and extending slavery. But not all secession movements have such motives. Some are undertaken for good or at least defensible reasons. In any event, there is nothing inherently contradictory about the idea of a legal secession.

Of course, whether or not a secession is legal, it may be morally justified. Conversely, a legal secession may be morally unjustified, as was the case with the Southern secession. But the history of the Southern secession does not taint the legal and moral grounds for secession. As I say here,

The constitutional contract is a limited grant of power to the central government, for the following main purposes: keeping peace among the States, ensuring uniformity in the rules of inter-State and international commerce, facing the world with a single foreign policy and a national armed force, and assuring the even-handed application of the Constitution and of constitutional laws. That is all.

It is clear that the constitutional contract has been breached. It is clear that the Constitution’s promise to “secure the Blessings of Liberty to ourselves and our Posterity”  has been blighted.

Desperate times require desperate measures. I suggest that we begin at the beginning, with a new Declaration of Independence, and proceed from there to a new Constitution.

Obamacare

In a post at The American, John F. Gaski writes:

On the central issue of ObamaCare’s notorious mandate—i.e., whether it is constitutional for the federal government to compel a consumer purchase—everything hinges on the U.S. Constitution’s Commerce Clause. That element of the Constitution gives the federal government authority to regulate interstate commerce or activities affecting it. So far, so reasonable.

But the crux of the issue is whether forcing Americans to buy healthcare is regulation of commerce in the first place. Opponents note that non-purchase of healthcare should not be considered commerce or commerce-related activity. ObamaCare apologists, including some federal judges, make the remarkable claim that a decision not to purchase qualifies as interstate commerce or activity affecting interstate commerce, the same as a decision to purchase or a purchase itself. But even the non-partisan Congressional Research Service, in its 2009 assessment of likely PPACA constitutionality, acknowledged that Commerce Clause-based federal regulatory authority targets genuine activities that affect interstate commerce, not inactivity.

How to resolve this disagreement? The answer is staring us in the face, but has remained obscure to some lawyers and jurists who cannot quite see the forest for the trees. All you really need to know is what the word “commerce” means. To wit, commerce is “exchange of goods, products, or property . . . ; extended trade” (Britannica World Language Dictionary, 1959); “the buying and selling of goods . . .; trade” (Webster’s New World Dictionary, 1964); “the buying and selling of commodities; trade” (The Merriam-Webster Dictionary, 1974); “interchange of goods or commodities, especially on a large scale . . . ; trade; business” (Dictionary.com, 2012). Uniformly, we see, the definition of commerce involves activity, not just a decision to act, and certainly not a decision to not act. The meaning of the concept of commerce presumes action, and always has. Moreover, even casual philology will confirm that the accepted meaning of “commerce” at the time of the Constitution’s drafting referenced activity, not inactivity, at least as much then as it does now (see C. H. Johnson, William & Mary Bill of Rights Journal, October 2004). In the same way, the Commerce Clause has long been construed to apply to action in or affecting commerce, from the 1824 Gibbons v. Ogden Supreme Court case onward.

I am in complete agreement:

[T]he real issue … comes down to this: Does Congress’s power to regulate interstate commerce extend to “health care” generally, just because some aspects of it involve interstate commerce? In particular, can Congress constitutionally impose the individual mandate under the rubric of the Commerce Clause or the Necessary and Proper Clause?…

It is safe to say that a proper reading of the Constitution, as exemplified in the authoritative opinions excerpted above, yields no authority for Obamacare. That monstrosity — the official, Orwellian title of which is the Patient Protection and Affordable Care Act (PPACA) — attempts to reach an aggregation known as “health care,” without any differentiation between interstate commerce, intrastate commerce, and activities that are part of neither, namely, the choices of individuals with respect to health insurance.

It may be a valid exercise of Congress’s power to regulate actual interstate commerce that touches on the provision of health care. It is not a valid exercise to aggregate everything called “health care” and to regulate it as if it were all within the reach of Congress. When that happens, there is no room left — in “health care” nor, by extension, any other loose aggregation of activities — for State action or individual choice.

In sum, Obamacare is neither a valid regulation of interstate commerce nor necessary and proper to a valid regulation of interstate commerce. It is a governmental seizure of 1/9th of the economy. The individual mandate — which is a central feature of that seizure — is nothing more than coercion. It is no less peremptory than the military draft.

Freedom of Conscience

Yes, Virginia, there is freedom of conscience in Virginia:

A bill that ensures that faith-based adoption agencies in the state of Virginia won’t be forced to place children in households led by same-sex couples has passed both houses of the General Assembly and is heading to the desk of Gov. Robert McDonnell, a supporter of the legislation, who is expected to sign it soon.

Gov. McDonnell and the majorities in the Virginia legislature are standing up for freedom of conscience, which is among the negative rights that is trampled by grants of  “positive rights” (i.e., privileges). These

are the products of presumption — judgments about who is “needy” and “deserving” — and they are bestowed on some by coercing others. These coercions extend not only to the seizure of income and wealth but also to denials of employment (e.g., affirmative action), free speech (e.g., campaign-finance “reform”), freedom of contract (e.g., mandatory recognition of unions), freedom of association (e.g., forced admission of certain groups to private organizations), freedom of conscience (e.g., forced participation in abortions), and on and on.

Income Inequality

Thomas A. Garrett, a sensible economist, says good things about income inequality:

The apparent increase in U.S. income inequality has not escaped the attention of policymakers and social activists who support public policies aimed at reducing income inequality. However, the common measures of income inequality that are derived from the census statistics exaggerate the degree of income inequality in the United States for several reasons. Furthermore, although income inequality is seen as a social ill by many people, it is important to understand that income inequality has many economic benefits and is the result of, and not a detriment to, a well-functioning economy….

…[O]ver time, a significant number of households move to higher positions along the income distribution and a significant number move to lower positions along the income distribution. Common reference to “classes” of people (e.g., the lowest 20 percent, the richest 10 percent) is very misleading because income classes do not contain the same households and people over time….

The unconstrained opportunity for individuals to create value for society, which is reflected by their income, encourages innovation and entrepreneurship. Economic research has documented a positive correlation between entrepreneurship/innovation and overall economic growth.9 A wary eye should be cast on policies that aim to shrink the income distribution by redistributing income from the more productive to the less productive simply for the sake of “fairness.” 10 Redistribution of wealth would increase the costs of entrepreneurship and innovation, with the result being lower overall economic growth for everyone.

I am losing track of the posts in which I have made the same points. See this one and this one, and the posts linked in each of them.

The Left-Libertarian (“Liberal”) Personality vs. Morality

Will Wilkinson, a left-libertarian (i.e., modern “liberal”) if ever there was one, writes about his score on the Big-Five Personality Test:

I score very high in “openness to experience” and worryingly low in “conscientiousness”.

A true libertarian (i.e., a Burkean) would score high on “openness to experience” and high on “conscientiousness” — as I do.

As I have said, differences

between various libertarian camps and between libertarians, Burkean conservatives, yahoo conservatives, “liberals,” and so on — are due as much to differences of temperament as they are to differences in knowledge and intelligence.

But temperament is a reason for political error, not an excuse for it:

[T]he desirability or undesirability of state action has nothing to do with the views of “liberals,” “libertarians,” or any set of pundits, “intellectuals,” “activists,” and seekers of “social justice.” As such, they have no moral standing, which one acquires only by being — and acting as — a member of a cohesive social group with a socially evolved moral code that reflects the lessons of long coexistence. The influence of “intellectuals,” etc., derives not from the quality of their thought or their moral standing but from the influence of their ideas on powerful operatives of the state.

See also:
Libertarianism and Morality
Libertarianism and Morality: A Footnote

The Southern Secession Reconsidered

A post by The Vociferous Reader, “Lincoln’s War,” prompts me to revisit the issue of secession. The main obstacle to serious consideration of secession is its association with the secession of the Southern States, which was motivated by the issue of slavery. The resulting Civil War had three principle outcomes:

  • reunification of the United States by force (which did not determine the legality of secession)
  • the end of slavery in the reunified nation
  • the persistent myth of the South as especially bigoted and oppressive, despite the North’s undeniable record of racial tension, discrimination, and de facto segregation.

What tends to be forgotten is the South’s pre-Civil War stance with respect to the central government. Southern resistance to the centralization of political power, and to the central government’s unconstitutional exercises of power, long pre-dated the Southern secession and was founded on a valid interpretation of the Constitution.

The Civil War, as a forcible act of reunification, is defensible only insofar as a main result was the end of slavery in the United States. On constitutional grounds, however, the Southern secession was valid and should not have been contested.

I have elsewhere laid out a general case for secession. Here it is, in part:

[S]ome of the people of the Colonies put an end to the union of the Colonies and Great Britain, on the moral principle that no person or people is obliged to remain in an abusive relationship. That moral principle is all the more compelling in the case of the union known as the United States, which — mysticism aside — is nothing more than the creature of the States and the people thereof.

It was only by the grace of nine States that the Constitution took effect, thereby establishing the central government. Those nine States voluntarily created the central government and, at the same time, voluntarily granted certain, limited powers to it. The States understood that the central government would exercise its limited powers for the benefit of the States and their people. Every State subsequently admitted to the union has entered into the same contract with the central government.

But, as outlined above, the central government has breached its trust by exceeding the powers granted to it. In fact, the central government’s abuse of power has been so persistent and egregious that a reasonable remedy on the part of the States — individually or severally — is to declare the Constitution null and void. Each and every State, in other words, has the right to secede from the union and to withdraw from the central government its support and the support of the people.

My argument is buttressed by the pre-Civil War history of the United States, which includes the Whiskey Rebellion of the 1790s, the Kentucky and Virginia Resolutions of 1798 and 1799, the Nullification Crisis of 1828-33, and the Northern States’ Rights movement, which flourished before the Civil War and was sympathetic to the idea of Southern secession. Some of these events find their way into a review by David Gordon of Kevin R.C. Gutzman‘s The Politically Incorrect Guide to the Constitution.

Here are some relevant excerpts of Gordon’s review (page references omitted):

The principal thesis of the book is that the Jeffersonian, states’ rights understanding of America’s founding and the Constitution is correct. When the American colonies assembled in the Continental Congress and adopted the Declaration of Independence in 1776, they did not create a new nation, Abraham Lincoln to the contrary notwithstanding.

…The Declaration said that the colonies were now states, i.e., independent governments. “In the Declaration’s culminating fourth section, Congress declared the colonies to be ‘free and independent states’ and claimed for them the right to do everything that free countries could do.”

Nor did the Articles of Confederation change matters. Each state retained full sovereignty over all matters not “expressly delegated” to the United Sates….

As Gutzman makes clear, some delegates to the Philadelphia Convention certainly wished to change the nature of the American system. Instead of the usual split between nationalists and their opponents, however, Gutzman maintains that there were three parties in the convention: “The first was the monarchist party, the chief exemplar of which was New York’s Alexander Hamilton. The monarchists were intent on wiping the states from the map and substituting one unitary government for the entire continent … The second party consisted of nationalists, people who — without ever avowing admiration for the monarchical form — wanted to push centralization as far as could reasonably be hoped … Finally, there was a cohort in the Convention of members insistent on proposing a reinforcement of the central government while maintaining the primary place of the states in the American polity — a truly federal, rather than national government.”

Gutzman rightly points out that neither of the two nationalist parties got its way. Madison, the “Father of the Constitution”, wanted the federal Congress to have the power to veto state legislation, but this proposal was rejected. So far, our author has given a standard account, but now comes his key interpretive move.

He maintains that crucial to understanding the meaning of the Constitution were the intentions of the delegates to the ratifying conventions. These delegates, after all, were the people whose votes established the Constitution as legally binding. Gutzman concentrates on the Virginia convention, and he places great stress on one point.

The Virginia delegates looked on the new Constitution with great skepticism, fearing that it would become a tool for the federal government to crush the states. To placate opponents such as Patrick Henry, the leaders of the pro-ratification forces, who included Governor Edmund Randolph, the proposer of the nationalist Virginia Plan at Philadelphia, had to make a concession. They had to agree that the powers of the new Congress were limited to those “expressly delegated” in the Constitution. The delegates repudiated in advance any move by the new authorities to expand their powers beyond this. Further, they wrote into their ratification statement the right to withdraw from the new government, if it exceeded its proper powers.

Gutzman contends that because this understanding was part of Virginia’s instrument of ratification, no stronger central government can claim Virginia’s authorization. And since it would be senseless to think that the Constitution gives the federal government more power over some states than others, the Virginia restrictions apply to all the states.

This is the Jeffersonian view of the Constitution. Gutzman’s great contribution is to show that the Virginia and Kentucky Resolutions of 1798 and 1799, the key statements of the Jeffersonian position, restated the understanding of the Virginia ratifying convention. Contrary to the Federalist opponents of the Resolutions, Jefferson and Madison did not act as innovators in 1798; and their position cannot be dismissed as merely one of several competing interpretations. It was firmly based on the legally valid Virginia ratification instrument.

Gutzman summarizes his main contention in this way:

“Most history and legal textbooks say that Jefferson and Madison invented the idea of state sovereignty. But … they only argued for what the founders had already understood to be true about the sovereign states from the beginning, even if some of the founders(the nationalist and monarchist wings) wanted to change that understanding.”

However sound the Jeffersonian understanding of the Constitution, it of course has not prevailed in subsequent American history. Gutzman assigns federal judges a large share of the responsibility for the transformation of the original understanding; and one judge in particular arouses his critical scorn. The judge in question is the foremost of all federalist judges, Chief Justice John Marshall….

For Gutzman, Marshall’s chief sin is … his repudiation of the Jeffersonian understanding of the limits of federal power. In McCulloch v Maryland, Marshall “wrote that while the Articles of Confederation had specified that Congress had only the powers it was ‘expressly delegated,’ the Constitution included no such language, so no such principle applied to it. This was an extraordinary argument, given that Marshall himself and other Federalists … had assured their ratification colleagues that this very principle of limited federal power … was implicit in the unamended Constitution even before the Tenth Amendment was adopted.” [It was, moreover, clear from the construction of Article I, Section 8, and the discussion of that portion of the Constitution in the The Federalist Papers (e.g., No. 45): ED.]

Given his Jeffersonian views, it comes as no surprise that Gutzman thinks the Southern states acted fully within their rights when they seceded from the Union in 1861. “The Federalists always insisted during the ratification debates — knowing that they had to win support for the Constitution — that the states were individual parties to a federal compact. Spelling out the logic of the compact, three states — Virginia, Maryland, and Rhode Island — explicitly reserved (in the act of ratifying the Constitution) their right to secede from the Union.”

Gutzman has made a very strong case for his Jeffersonian understanding of the Constitution. A critic might challenge him on the grounds that we need not today care about how the Constitution was understood by its eighteenth century ratifiers. But Gutzman could in response say that this is what was legally enacted; those who favor other views of government should not attempt to attain their goals through misreadings and distortion of the constitutional text.

Just so. There is no point in memorializing an agreement unless that agreement is meant to stand for all time, or until the parties to it agree to revise or revoke it. Legislators, executives, and judges are not parties to the Constitution; they are its sworn caretakers. And they have long failed in their duty.

As for Lincoln, he did his duty as he saw it — which was to preserve the Union. It is hard (for me) to fault the man who ended his first inaugural address with this:

I am loath to close. We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory, stretching from every battle-field and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union when again touched, as surely they will be, by the better angels of our nature.

P.S. The foregoing makes a legal case for secession. A different case, which I make here, is that secession is valid because the Constitution did not bind the whole of “the people” when it was ratified, and could not have bound future generations.

*   *   *

Related posts:
The State of the Union: 2010
The Shape of Things to Come
I Want My Country Back
Secession
A New, New Constitution
Secession Redux
A New Cold War or Secession?
The Real Constitution and Civil Disobedience
A Declaration of Independence
First Principles
Zones of Liberty
The Constitution: Original Meaning, Corruption, and Restoration
A Conversation with Uncle Sam
The Unconstitutionality of the Individual Mandate
Does the Power to Tax Give Congress Unlimited Power?
Does Congress Have the Power to Regulate Inactivity?
Is the Constitution True?
Is the Constitution True? An Addendum
Re-Forming the United States

Re-Forming the United States

UPDATE: The urgency of re-forming the United States is underscored by “Our Perfect, Perfect Constitution.” The author, Michael Stokes Paulsen (Distinguished University Chair and Professor of Law at the University of St. Thomas (Minnesota) School of Law), restates the entire Constitution in the form of twenty provisions that reflect the current state of constitutional law as established by decisions of the Supreme Court. Paulsen’s version of the Constitution is true, depressing, and enraging.

Paulsen wrote his paper before U.S. District Judge Gladys Keesler opined that the central government may regulate mental activity.  Judge Keesler’s view, which is applauded on the left, is the last straw. The juggernaut that rules from Washington is nothing more than an alien occupying force. It should be treated accordingly by liberty-loving Americans.

The specter of constitutional revitalization haunts “liberals”:

Imagine that, a few years from now, Americans are suddenly plunged into a constitutional crisis. Imagine an economy still muddling in recession; a government rendered inept by the complete collapse of the Senate as a serious institution of deliberation or a continued division between House and Senate; a conservative Supreme Court gripped by a passion to restore the pre-New Deal version of the Commerce Clause (which treated commerce merely as the physical movement of goods across state lines); a militant Tea Party movement convinced that the Tenth Amendment imposes real limits on the lawmaking power of Congress, and is not simply a hollow “truism” saying that Congress can only do what it is constitutionally empowered to do. These days, conjuring up such a vision is not so hard. Imagine that somehow the belief took hold that what the Constitution needed was not a revision here or there, but wholesale replacement. (Jack Rakove of Stanford University, in “American Ratification,” Harvard Magazine, January-February 2011)

How much misrepresentation and distortion is packed into that paragraph? Let’s see:

1. The United States has been in constitutional crisis since the 1930s, when the Supreme Court — frightened by the Great Depression, cowed by FDR, and then reshaped by him — allowed Congress and the States to exceed their constitutional authority. To the Rakoves of this world, a constitutional crisis is what happens when there’s a movement to honor the spirit and letter of the Constitution.

2. The state of the economy, the state of the Senate, and a “divided” House and Senate (i.e., not both controlled by Democrats) are hardly the stuff of a constitutional crisis. The standing of the Constitution is — and should be — unaffected by such things, unless one believes (with the New Deal Supreme Court) that the law should bend with economic winds, and that it is the rightful place of Congress to actively involve itself in every nook and cranny of Americans’ lives.

3. The pre-New Deal version of the Commerce Clause is the correct one, contrary to Rakove’s desire for an all-powerful state.

4. The Tenth Amendment isn’t “hollow.” It underscores — for the benefit of the willfully obtuse, like Rakove — the express limits that the original Constitution places on Congress’s power. In leaving no doubt that the States and the people retain the powers not specifically assigned to Congress, it removes (or should remove) any ambiguity about the limited role that Congress (and the federal government) should play in the lives and businesses of Americans. It says that the Constitution means what it says. It is “hollow” to Rakove and his ilk only because they don’t want the Constitution to mean what it says.

5. In that vein, I must add that the “militant Tea Party” movement seeks to honor the entire Constitution, not just the important Tenth Amendment. Rakove wants to believe — or wants his readers to believe — that the Tea Party movement is made up of morons who don’t understand what’s in the original Constitution. Well, the true morons are the Rakoves, who believe that their expansive view of governmental power can’t be turned against them.

6. Rakove posits two options for dealing with the so-called crisis: a revision here or there, or wholesale replacement of the Constitution. There’s a third option: wholesale rewriting to reassert, in no uncertain terms, the meaning and purposes of the Constitution. That’s what Rakove and his ilk really fear, because they’re wedded to the judicially created, left-statist version of the Constitution that has replaced the real thing without benefit of an amendment.

For non-Rakovians — that is, for devotees of the real Constitution — I counsel the following steps:

  • A sufficient number of States (at least one-half of them) would declare their independence from the United States, on the ground that the central government has breached its contract with the States by persistently abusing its powers over many decades.
  • Those States would then convene a constitutional convention to re-form the United States, by adopting a new Constitution that — in no uncertain terms — restates the principles of the original Constitution and ensures their enforcement through additional checks on the central government.

With regard to the second point, Article V of the new Constitution would include this:

A judgment of any court of the United States of America may be revised or revoked by an act of Congress, provided that such any revision or revocation is approved by two-thirds of the members of each house and leads to a result that conforms to this Constitution.

There is this, in Article VI:

Each State retains the right to secede from this Union, but secession shall in each case be approved by three-fourths of the members of each house of a State’s legislature and ratified by the executive of the State within thirty days of its approval by both houses of the State’s legislature.

Articles VII and VIII, Keeper of the Constitution and Conventions of the States, open thusly:

The responsibility for ensuring that the legislative, executive, and judicial branches adhere to this constitution in the exercise of their respective powers shall be vested in a Keeper of the Constitution. The Keeper may review acts of Congress, the executive branch, and judicial branch that have the effect of making law and appropriating monies.

*    *    *

Delegations of the States shall convene every four years for the purpose of considering revisions to and revocations of acts of the government that is established by this constitution. Such conventions (hereinafter “convention of the States”) may revise and/or revoke any act or acts and/or any holding or holdings, in the sole discretion of a majority of State delegations present and voting.

Article IX would authorize petitions and subsequent elections for the revocation of a broad range of governmental acts and the expulsion of members of Congress, the President, Vice President and justices of the Supreme Court. Also, a constitutional convention may be called pursuant to a successful petition.

I understand that I am proposing a radical step, but I believe that it is impossible to reinstate the real Constitution in any other way. Perhaps the threat of radical measures would have a sobering effect on those who are content with the status quo or incremental progress… but probably not.

Related posts (in chronological order):
Secession
A New, New Constitution
Secession Redux
A New Cold War or Secession?
The Real Constitution and Civil Disobedience
A Declaration of Independence
The State of the Union: 2010
The Shape of Things to Come
Zones of Liberty
The Constitution: Original Meaning, Corruption, and Restoration
A Conversation with Uncle Sam
I Want My Country Back
The Unconstitutionality of the Individual Mandate
Does the Power to Tax Give Congress Unlimited Power?
Does Congress Have the Power to Regulate Inactivity?
Is the Constitution True?
Is the Constitution True? An Addendum

Secession, Anyone?

Please choose only one answer. Before answering, you might want to read these posts:

Secession

Secession, Redux

A Declaration of Independence

Zones of Liberty

Arnold Kling offers some suggestions for slowing or reversing our present decline into totalitarianism. One of his suggestions begins with this:

[E]nable people to escape the power of monopoly government. This could be all-out escape, as in seasteading or charter cities. Or it could be incremental escape, as I propose in Unchecked and Unbalanced, with vouchers, charter communities, and competitive government, meaning mutual associations and standard-setting bodies in which people enter and exit voluntarily.

I like the idea of charter communities, which I see as a form of competitive government. I call my version zones of liberty. These would be experiments in liberty. If successful, they would lead the way to the kind of federalism envisaged by the Framers of the original Constitution.

The 50 States (and their constituent municipalities) are incompatible with the kind of federalism envisioned by the Framers. Today’s State and municipal governments are too bureaucratic and too beholden to special interests; they have become smaller versions of the federal government. For, in today’s populous States and municipalities, coalitions of minority interests are able to tyrannize the populace. (The average State today controls the destinies of 25 times as many persons as did the average State of 1790.) Those Americans who “vote with their feet” through internal migrration do not escape to regimes of liberty so much as they escape to regimes that are less tyrannical than the ones in which they had been living.

The kind of federalism envisioned by the Framers — and the kind of federalism necessary to liberty — would require the devolution to small communities and neighborhoods of all but a few powers: war-making, the conduct of foreign affairs, and the regulation of inter-community commerce for the sole purpose of ensuring against the erection of barriers to trade. With that kind of federalism, the free markets of ideas and commerce would enable individuals to live in those communities and neighborhoods that best serve their particular conceptions of liberty.

What do I have in mind? A zone of liberty would be something like a “new city” — with a big difference. Uninhabited land would be acquired by a wealthy lover (or lovers) of liberty, who would establish a development authority for the sole purpose of selling the land in the zone. The zone would be populated initially by immigrants from other parts of the United States. The immigrants would buy parcels of land from the development authority, and on those parcels they could build homes or businesses of their choosing. Buyers of parcels would be allowed to attach perpetual covenants to the parcels they acquire, and to subdivide their parcels with (or without) the covenants attached. All homes and businesses would have to be owned by residents of the zone, in order to ensure a close connection between property interests and governance of the zone.

Infrastructure would be provided by competing vendors of energy, telecommunications, and transportation services (including roads and their appurtenances). Rights-of-way would be created through negotiations between vendors and property owners. All other goods and services — including education and medical care — would be provided by competing vendors. No vendor, whether or not a resident of the zone, would be subject to any regulation, save the threat of civil suits and prosecution for criminal acts (e.g., fraud). Any homeowner or business owner could import or export any article or service from or to any place, including another country; there would be no import controls, duties, or tariffs on imported or exported goods and services.

The zone’s government would comprise an elected council, a police force, and a court (all paid for by assessments based on the last sale price of each parcel in the zone). The police force would be empowered to keep the peace among the residents of the zone, and to protect the residents from outsiders, who would be allowed to enter the zone only with the specific consent of resident homeowners or business owners. Breaches of the peace (including criminal acts) would be defined by the development of a common law through the court. The elected council (whose members would serve single, four-year terms) would oversee the police force and court, and would impose the assessments necessary to defray the costs of government. The council would have no other powers, and it would be able to exercise its limited powers only by agreement among three-fourths of the members of the council. The members, who would not be salaried, would annually submit a proposed budget to the electorate, which would have to approve the budget by a three-fourths majority. The electorate would consist of every resident who is an owner or joint owner of a residence or business (not undeveloped land), and who has attained the age of 30.

A zone of liberty would not be bound by the laws (statutory and otherwise) of the United States, the individual States, or any of political subdivision of a State. (The federal government could impose a per-capita tax on residents of the zone, in order to defray the zone’s per-capita share of the national budget for defense and foreign affairs.) The actions of the zone’s government would be reviewable only by the U.S. Supreme Court, and then only following the passage of a bill of particulars by two-thirds of each house of Congress, and with  the concurrence the president. (A zone could be abolished only with the approval of four-fifths of each house of Congress, and with the concurrence of the president.)

Absent such an experiment, I see only one hope for liberty — albeit a slim one — a Supreme Court that revives the Constitution. Politics as usual will only take us further down the road to serfdom.

Related posts:
Is Statism Inevitable?
The Interest-Group Paradox
Utilitarianism vs. Liberty
Greed, Cosmic Justice, and Social Welfare
Positive Rights and Cosmic Justice
Fascism and the Future of America
Negative Rights, Social Norms, and the Constitution
Rights, Liberty, the Golden Rule, and the Legitimate State
The Near-Victory of Communism
Tocqueville’s Prescience
State of the Union: 2010
The Shape of Things to Come
The Real Burden of Government

A Declaration of Independence, Updated

If you haven’t read “A Declaration of Independence,” or haven’t read it since I revised it, I recommend a first or second look.

A Declaration of Independence

REVISED, 04/02/10 and 04/03/10

A note to Tea-Partiers. It is time to channel your outrage, constructively and nonviolently. My suggestion: hold a convention in each State; adopt — in the name of the people of each State — a declaration of independence from the unconstitutional acts of the government of the United States; engage the millions of silent but equally outraged Americans who share your views by asking them to join you in signing the declarations. An articulate declaration that is joined by millions of Americans should cause many politicians — even Democrats — to rethink their allegiance to the politics of pork, regulation, and taxation. A declaration of independence from unconstitutional acts might look like this:

The people of the State of _______________ declare to the people of the United States and to their governments that

The Constitution of the United States and all laws made in accordance with it are the supreme law of the land. The ratification of the Constitution resulted in the establishment a government of the United States (the central government) for the purposes of making, executing, and adjudicating laws. But the acts of the central government are valid and binding only when they are in accordance with the Constitution.

In fact, the legislative, executive, and judicial branches of the central government have abused their powers by making, executing, and upholding laws contrary to the Constitution; for example:

A decennial census is authorized in Article I, Section 2, for the purpose of enumerating the population of each State in order to apportion the membership of the House of Representatives among the States, and for no other purpose.

Article I, Section 1, vests all legislative powers in the Congress, but Congress has authorized and allowed unelected, executive-branch regulators to legislate on myriad matters affecting the liberty and property of Americans.

Article I, Section 8, enumerates the specific powers of Congress, which do not include such things as establishing and operating national welfare and health-care programs; intervening in the education of America’s children; regulating interstate commerce beyond ensuring its free flow; regulating intrastate commerce and private, non-commercial transactions; lending money and guaranteeing loans made by quasi-governmental institutions and other third parties; acquiring the stock and debt of business enterprises; establishing a central bank with the power to do more than issue money; requiring the States and their political subdivisions to adopt uniform laws on matters that lie outside the enumerated powers of Congress and beyond the previously agreed powers of the States and their subdivisions;  and coercing the States and the political subdivisions in the operation of illegitimate national programs by providing and threatening to withhold so-called federal money, which is in fact taxpayers’ money.  (The notion that the “general welfare” and/or “necessary and proper” clauses of Article I, Section 8, authorize such activities was refuted definitively in advance of the ratification of the Constitution by James Madison in No. 41 of the Federalist Papers, wherein the leading proponents of the Constitution stated their understanding of the Constitution’s meaning when they made the case for its ratification.)

One of the provisions of Article I, Section 10, prohibits interference by the States in private contracts; moreover, the Constitution nowhere authorizes the central government to interfere in private contracts. Yet, directly and through the States, the central government has allowed, encouraged, and required interference in private contracts pertaining to employment, property, and financial transactions.

Amendment I of the Constitution provides that “Congress shall make no law . . . abridging the freedom of speech.” But Congress has nevertheless abridged the freedom of political speech — our most precious kind — by passing bills that have been signed into law by presidents of the United States and, in the main, upheld by the Supreme Court of the United States.

Amendment IX of the Constitutions provides that its “enumeration . . . of certain rights, shall not be construed to deny or disparage others retained by the people.” But Congress, in concert with various presidents and Supreme Court majorities, has enacted laws that circumscribe one of our time-honored freedoms: the freedom of association.

As outlined above, the central government routinely and massively violates Amendment X, which states 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.”

Legislative, executive, and judicial acts of the central government have perverted the meaning of Amendments XIII, XIV, and XV — which properly abolished slavery and outlawed racial discrimination by government — to require discrimination on behalf of certain “protected groups” designated by law, to the detriment of groups not thus favored.

These and other abuses of power by the central government are grounds for civil disobedience, at the least, and secession, in the extreme.

With regard to secession, there is a judicial myth — articulated by a majority of the United States Supreme Court in Texas v. White (1868) — that the union of States is perpetual:

The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to “be perpetual.” And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained “to form a more perfect Union.” It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?

The Court’s reasoning — if it may be called that — is born of mysticism, not legality. Similar reasoning might have been used — and was used — to proclaim the Colonies inseparable from Great Britain. And yet, some of the people of the Colonies put an end to the union of the Colonies and Great Britain, on the moral principle that no person or people is obliged to remain in an abusive relationship. That moral principle is all the more compelling in the case of the union known as the United States, which — mysticism aside — is nothing more than the creature of the States and the people thereof.

It was only by the grace of nine States that the Constitution took effect, thereby establishing the central government. Those nine States voluntarily created the central government and, at the same time, voluntarily granted certain, limited powers to it. The States understood that the central government would exercise its limited powers for the benefit of the States and their people. Every State subsequently admitted to the union has entered into the same contract with the central government.

But, as outlined above, the central government has breached its trust by exceeding the powers granted to it. In fact, the central government’s abuse of power has been so persistent and egregious that a reasonable remedy on the part of the States — individually or severally — is to declare the Constitution null and void. Each and every State, in other words, has the right to secede from the union and to withdraw from the central government its support and the support of the people.

Two facts militate against secession as a remedy for the central government’s abuse of power. First, the States have much to gain by remaining joined in union: mutual defense and the free movement of people, goods, and services among the States. Second, because the central government has acquired overwhelming might, and because that might would no doubt be used to suppress secession, it would be sheer folly to secede — despite the moral and legal rightness of doing so.

The only practical alternative to secession is civil disobedience. Accordingly, the people of ______________ do solemnly state the following:

We reaffirm our allegiance to the Constitution of the United States, and hereby pledge to preserve, protect, and defend it against all its enemies, foreign and domestic. The central government of the United States, through prolonged and egregious abuses of its delegated powers, has proved itself an enemy of the Constitution.

Having assembled peacefully to consider the remedies available to us, we petition the central government to honor the Constitution by negating and reversing all of its unconstitutional acts within a reasonable period of time, which shall be no more than five years. If the central government fails to negate and reverse all of its unconstitutional acts within five years, it will be within the moral and legal rights of the people of this State to sever the ties of this State to the central government, to refuse all services and emoluments that may be offered by the central government, to withhold all services and payments to the central government, and to reclaim — for the benefit of the people of this State — any and all parcels of land and bodies of water within the boundaries of this State that are (or may be) held in the name of the central government.

The foregoing notwithstanding, the people of this State — despite their moral and legal rights to sever this State’s ties to the central government — shall not withdraw from the community of States which is known as the United States, and shall not take up arms against the central government to enforce their rights. But the governments and people of this State may refuse peacefully to comply with the unconstitutional laws, regulations, executive orders, and judicial holdings of the central government. Such refusals shall lead to violence only if the central government uses force to exact compliance with its unconstitutional laws, regulations, executive orders, or judicial holdings, thus requiring the people to act in self-defense.

Done, on this day of ______________________________, by the people of _______________ in convention, and subscribed to by the delegates to the Convention and other citizens of _______________, whose signatures are appended hereto.

Attest:

_______________, President of the Convention

_______________, Vice President of the Convention

_______________, Secretary of the Convention

P.S. The foregoing makes a legal case for secession. A different case, which I make here, is that secession is valid because the Constitution did not bind the whole of “the people” when it was ratified, and could not have bound future generations.

A New (Cold) Civil War or Secession?

Max Borders writes:

. . . Toleration and open discourse is, well, no longer tolerated. We are slowly becoming a place of mere de jure free speech. And even that is being eroded by the day. I have to blame so-called “progressives” the most for this. They are people for whom the end justifies the means. So any lip-service they occasionally pay to civil liberties is but a tool of convenience to be employed on the way to getting things their way. A new cold civil war is emerging.

There is much truth in that. But I would go further.

Thanks to the lethal combination of left-statist demagoguery and voter irrationality, Americans are, among other things, saddled with

  • the destruction of civilizing social norms, together with a high threshold of tolerance for criminals and a concomitant softness on matters of national defense
  • the continuing nationalization of medical care, which began in earnest with Medicare and continues in the guise of Obamacare (with all of its potential for bureaucratic abuses of power)
  • severe restrictions on economic output in order to satisfy the dictatorial urge to puritanism that lies behind the “warming” industry

As I have said,

[t]hese encroachments . . . are morally illegitimate because their piecemeal character has robbed Americans of voice and mooted the exit option. And so, we have discovered — too late — that we are impotent hostages in our own land.

I am reminded of these words:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

What we need is not a civil war — cold or hot — but a serious movement toward secession:

The legal basis for the perpetuation of the United States disappears when the federal government abrogates the Constitution. Given that the federal government has long failed to honor Amendment X [among many other parts of the Constitution], there is a prima facie case that the United States no longer exists as a legal entity. Secession then becomes more than an option for the States: It becomes their duty, both as sovereign entitities and as guardians of their citizens’ sovereignty.

Secession Redux

In “Secession,” I wrote:

The original Constitution contemplates that the government of the United States might have to suppress insurrections and rebellions (see Article I, Section 8), but it nowhere addresses secession. Secession, in and of itself, is not an act of insurrection or rebellion, both of which imply the use of force. Force is not a requirement of secession, which can be accomplished peacefully.

Therefore, given that the Constitution does not require a subscribing State to pledge perpetual membership in the Union, and given that the Constitution does not delegate to the central government a power to suppress secession, the question of secession is one for each State, or the people thereof, to determine, in accordance with the Tenth Amendment. The grounds for secession could be … the abridgment by the United States of the “rights, privileges and immunities”of its citizens.

What about Texas v. White (U.S. Supreme Court, 1868), in which a 5-3 majority anticipated … arguments for a mystical bond of Union; for example:

When … Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.

Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union.

It would have been bad — bad for slaves, bad for the defense of a diminished Union — had the South prevailed in its effort to withdraw from the Union. But the failure of the South’s effort, in the end, was owed to the superior armed forces of the United States, not to the intentions of the Framers of the Constitution.

In any event, the real jurisprudential issue in Texas v. White was not the constitutionality of secession; it was the right of the post-Civil War government of Texas to recover bonds sold by the secessionist government of Texas. Moreover, as Justice Grier noted in his dissent,

Whether [Texas is] a State de facto or de jure, she is estopped from denying her identity in disputes with her own citizens. If they have not fulfilled their contract, she can have her legal remedy for the breach of it in her own courts.

The majority’s ruling about the constitutionality of secession can be read as obiter dictum and, therefore, not precedential.

Clifford P. Thies makes a similar case in “Secession Is in Our Future“:

The US law of secession is thought to have been decided by the US Supreme Court in White v. Texas, following the Civil War. The actual matter to be decided was relatively insignificant. The Court used the occasion to issue a very broad decision. Chief Justice Chase, speaking for the Court, said,

The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.

The first sentence I just quoted invokes words such as “perpetual,” and in so doing may create the impression that the Supreme Court decreed that no [S]tate could ever secede from the Union. But, on careful reading, the relationship between Texas and the other [S]tates of the Union is merely “as indissoluble as the union between the original States.” In other words, Texas, having been a nonoriginal [S]tate, has no greater right of secession than do the original [S]tates. As to how [S]tates might secede, the second sentence says, “through revolution or through consent of the States.”

As to why a [S]tate might secede, … Chief Justice Chase presciently discusses the … 10th Amendment[] to the US Constitution, which reserve[s] to the [S]tates and to the people thereof all powers not expressly granted to the federal government, and that the design of the Union, implicit in the very name “United States,” is the preservation of the [S]tates as well as of the Union:

the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government.

In other words, the federal government abrogates the Constitution when it fails to honor Amendment X:

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.

Thies puts it starkly:

The so-called United States of America ceases to exist when the political majority of the country attempts to rule the entire country as a nation instead of as a federal government. In such a circumstance, the “indestructible union of indestructible [S]tates” of which the Court speaks is already dissolved.

I would put it this way: The legal basis for the perpetuation of the United States disappears when the federal government abrogates the Constitution. Given that the federal government has long failed to honor Amendment X, there is a prima facie case that the United States no longer exists as a legal entity. Secession then becomes more than an option for the States: It becomes their duty, both as sovereign entitities and as guardians of their citizens’ sovereignty.

Secession

Rick Perry, governor of Texas, has expressed sympathy for proponents of the secession of Texas from the United States. “Liberal” commentary to the contrary, current secessionist sentiment arises not from a desire to own slaves, or otherwise to deprive certain groups of their constitutional rights, but from righteous and rightful opposition to the hell-bent-for-fascism-regime now ascendant in Washington.

The question then arises whether Texas could secede peacefully, under the Constitution of the United States. An argument for secession can be found in the Treaty of Annexation between the people of Texas and the United States of America (1844). Article II of the treaty reads as follows:

The citizens of Texas shall be incorporated into the Union of the United States, maintained and protected in the free enjoyment of their liberty and property and admitted, as soon as may be consistent with the principles of the federal constitution, to the enjoyment of all the rights, privileges and immunities of citizens of the United States.

A case can be made (if not won) that the federal government has abridged the “rights, privileges and immunities of citizens of the United States,” including Texans, through various unconstitutional actions. (I will not attempt to detail those actions here, for they are legion. I have written about some of them in many of the posts listed here. Robert Levy and William Mellor have analyzed the most egregious unconstitutional actions of the U.S. Supreme Court in their book, The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom.)

There is, moreover, a general case for secession as a constitutional act. I begin by referring to an anti-secessionist, one Timothy Sandefur of the blog Freespace. Sandefur — a lawyer of wide-ranging abilities and interests — has written “How Libertarians Ought to Think about the U.S. Civil War,” which also instructs us how to think about secession. He avers that “the Constitution does prohibit secession.”

Sandefur’s argument that the Constitution prohibits secession is an inferential one that rests on his conclusion that the action of a State (qua State)

cannot change the nature of the federal Constitution as adopted in 1787: it is a binding government of the whole people of the United States. No [S]tate may unilaterally leave the union.

Actually, Sandefur (and other federalists) to the contrary notwithstanding, the people of each State adopted the Constitution, not the whole people of the United States. And the people of each State were at liberty not to adopt the Constitution. In evidence, I introduce Article VII of the Constitution:

The ratification of the conventions of nine [S]tates, shall be sufficient for the establishment of this constitution between the [S]tates so ratifying the same.

Note, first, that ratification was accomplished State-by-State, not by the people of the United States as a whole. Note, second, that although the Constitution could have gone into effect upon being ratified by the conventions of only nine of the thirteen States, it would have been binding only upon the States whose people ratified it, that is, “between the [S]tates so ratifying the same.”

That all thirteen States did, eventually, ratify the Constitution is beside the point. Four of the States could have remained outside the Union; that is, they could have “seceded” preemptively. I therefore draw the following inference: If a State has the right to decline membership in the Union, it must have the right to withdraw from membership in the Union, inasmuch as the Constitution nowhere proclaims membership to be perpetual.

My inference, unlike Sandefur’s, finds support in the Constitution. I begin with the Tenth Amendment (ratified only three years after the original Constitution), which says:

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.

The original Constitution contemplates that the government of the United States might have to suppress insurrections and rebellions (see Article I, Section 8), but it nowhere addresses secession. Secession, in and of itself, is not an act of insurrection or rebellion, both of which imply the use of force. Force is not a requirement of secession, which can be accomplished peacefully.

Therefore, given that the Constitution does not require a subscribing State to pledge perpetual membership in the Union, and given that the Constitution does not delegate to the central government a power to suppress secession, the question of secession is one for each State, or the people thereof, to determine, in accordance with the Tenth Amendment. The grounds for secession could be, as stated above, the abridgment by the United States of the “rights, privileges and immunities”of its citizens.

What about Texas v. White (U.S. Supreme Court, 1868), in which a 5-3 majority anticipated Sandefur’s arguments for a mystical bond of Union; for example:

When…Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.

Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union.

It would have been bad — bad for slaves, bad for the defense of a diminished Union — had the South prevailed in its effort to withdraw from the Union. But the failure of the South’s effort, in the end, was owed to the superior armed forces of the United States, not to the intentions of the Framers of the Constitution.

In any event, the real jurisprudential issue in Texas v. White was not the constitutionality of secession; it was the right of the post-Civil War government of Texas to recover bonds sold by the secessionist government of Texas. Moreover, as Justice Grier noted in his dissent,

Whether [Texas is] a State de facto or de jure, she is estopped from denying her identity in disputes with her own citizens. If they have not fulfilled their contract, she can have her legal remedy for the breach of it in her own courts.

The majority’s ruling about the constitutionality of secession can be read as obiter dictum and, therefore, not precedential.

Perhaps the good people of Texas, if sufficiently riled, will give the Court something more substantial to chew on.