secession

A Resolution of Secession

In Convention, __________ 20__.

The Declaration of the people of the State of _______________.

It has become necessary for the people of _______________ to dissolve the political bands which have connected them with the United States of America, and to assume the separate and equal status of an independent nation. A decent respect for the opinions of mankind requires that the people of _______________ should declare the causes which impel them to the separation, and explain its legality.

The Constitution is a contract — a compact in the language of the Framers. The parties to the compact are not only the States but also the central government.

It was  by the grace of nine States that the Constitution became effective in 1789. Those nine States voluntarily created the central government and, at the same time, voluntarily ceded to it certain specified and limited powers. The States and their people were given to understand that, in return for the powers granted it, the central government would exercise those powers for the benefit of the States and their people. Every State subsequently admitted to the union has ascribed to the Constitution with the same understanding as the nine States whose ratification effected it.

Lest there be any question about the status of the Constitution as a compact, we turn to James Madison, who is often called the Father of the Constitution. Madison, in a letter to Daniel Webster dated March 15, 1833, addresses

the question whether the Constitution of the U.S. was formed by the people or by the States, now under a theoretic discussion by animated partizans.

Madison continues:

It is fortunate when disputed theories, can be decided by undisputed facts. And here the undisputed fact is, that the Constitution was made by the people, but as imbodied into the several states, who were parties to it and therefore made by the States in their highest authoritative capacity.

Moving closer in time to the ratification of the Constitution, this is from Madison’s report on the Virginia Resolutions of 1798, a report that was adopted by the General Assembly of Virginia in 1800:

The third resolution is in the words following:–

“That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact–as no further valid than they are authorized by the grants enumerated in that compact; and that, in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose, for arresting the progress of the evil and for maintaining, within their respective limits, the authorities, rights, and liberties, appertaining to them.”…

The resolution declares, first, that “it views the powers of the federal government as resulting from the compact to which the states are parties;” in other words, that the federal powers are derived from the Constitution; and that the Constitution is a compact to which the states are parties….

The other position involved in this branch of the resolution, namely, “that the states are parties to the Constitution,” or compact, is, in the judgment of the committee, equally free from objection…. [I]n that sense the Constitution was submitted to the “states;” in that sense the “states” ratified it; and in that sense of the term “states,” they are consequently parties to the compact from which the powers of the federal government result. . . .

. . . The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity.

Finally, in The Federalist No. 39, which informed the debates in the various States about ratification,  Madison says that

the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. . . .

That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act.

Madison leaves no doubt about the continued sovereignty of each State and its people. The remaining question is this: On what grounds, if any, may a State withdraw from the compact into which it entered voluntarily?

There is a judicial myth — articulated by a majority of the United States Supreme Court in Texas v. White (1869) — that States may not withdraw from the compact because 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 is born of mysticism, not legality. Similar reasoning might have been used — and was used — to assert that the Colonies were 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 the Colonies were not 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, as authorized by the people thereof.

In fact, the Constitution supplanted the Articles of Confederation and Perpetual Union, by the will of only nine of the thirteen States. Madison says this in The Federalist No. 43 regarding that event:

On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it? . . .

The . . . question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed.

Moreover, in a letter to Alexander Rives dated January 1, 1833, Madison says that

[a] rightful secession requires the consent of the others [other States], or an abuse of the compact, absolving the seceding party from the obligations imposed by it.

An abuse of the compact most assuredly necessitates withdrawal from it, on the principle of the preservation of liberty, especially if that abuse has been persistent and shows no signs of abating. The abuse, in this instance, has been and is being committed by the central government.

The central government is both a creature of the Constitution and a de facto party to it, as co-sovereign with the States and supreme in its realm of enumerated and limited powers. One of those powers enables the Supreme Court of the United States to decide “cases and controversies” arising under the Constitution, which alone makes the central government a responsible party. More generally, the high officials of the central government acknowledge the central government’s role as a party to the compact — and the limited powers vested in them — when they take oaths of office requiring them to uphold the Constitution.

Many of those high officials have nevertheless have committed myriad abuses of the central government’s enumerated and limited powers. The abuses are far too numerous to list in their entirety. The following examples amply justify the withdrawal of the State of _______________ from the compact:

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 none of the many intrusive purposes since sought by the Executive Branch and authorized by Congress.

Article I, Section 1, vests all legislative powers in the Congress, but Congress has authorized and allowed agencies of the Executive Branch to legislate, in the guise of regulation, on a broad and seemingly limitless range of matters affecting the liberty and property of Americans. Further, in violation of Article III, which vests the judicial power in the Judicial Branch, Congress has authorized and allowed agencies of the Executive Branch to adjudicate matters about which they have legislated, thus creating conflicts of interest that have systematically deprived millions of Americans of due process of law.

Article I, Section 8, enumerates the specific powers of Congress, which do not include many things that Congress has authorized with the cooperation and acquiescence of the other branches; for example, establishing and operating national welfare and health-care programs; intervening in the education of American’s children in practically every village, town, and city in the land; intrusively regulating not only interstate commerce but also intrastate commerce, the minutiae of manufacturing, and private, non-commercial transactions having only a faint bearing, if any, on interstate commerce; making and guaranteeing loans, including loans by quasi-governmental institutions and other third parties; acquisition of the stock and debt of business enterprises; establishment of 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 view 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 The Federalist No. 41, 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.

Contrary to the express words of Article II, which vests executive power in the President, Congress has vested executive power in agencies that are not under the control and supervision of the President.

The Supreme Court, in various holdings, has curtailed the President’s ability, as commander-in-chief, to defend Americans and their interests by circumscribing his discretionary authority in matters concerning the capture, detention, interrogation, and appropriate imposition of military punishment for offenses against the law of war, of enemy prisoners captured in the course of ongoing hostilities pursuant to a congressional declaration of war or authorization for use of military force.

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 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 Constitution 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 such time-honored rights as freedom of association, freedom of contract, and property rights. That such laws were enacted for the noble purpose of ending some outward manifestations of discrimination does not exempt them from the purview of Amendment IX. As Amendment XIII attests, freedom is for all Americans, not just those who happen to be in favor at the moment.

As outlined above, the central government has routinely and massively violated 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.”

We, therefore, the representatives of the people of _______________ do solemnly publish and declare that this State ought to be free and independent; that it is absolved from all allegiance to the government of the United States; that all political connection between it and government of the United States is and ought to be totally dissolved; and that as a free and independent State it has full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.

[Signatures of the people’s representatives]

Independence Day 2016: The Way Ahead

Prudence…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…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.… [A]nd such is now the necessity which constrains them to alter their former Systems of Government. The history…is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.

Declaration of Independence
(In Congress. July 4, 1776. The unanimous Declaration
of the thirteen united States of America)

*      *      *

It is fitting, in this summer of discontent, to be faced with a choice between the spiritual descendants of P.T. Barnum and Lady Macbeth. Washington, Jefferson, and Madison are spinning in their graves, at high velocity.

The candidacies of Trump and Clinton are symptoms of the looming demise of liberty in the United States. There hasn’t been a candidate since Ronald Reagan who actually understood and believed that Americans would be freer and therefore more prosperous if the central government were contained within the four corners of the Constitution. (And even Reagan had a soft spot in his heart for Social Security.) Nevertheless, it is appalling but unsurprising that liberty’s end is in sight just 27 years after Reagan left office.

What went wrong? And how did it go wrong so quickly? Think back to 1928, when Americans were more prosperous than ever and the GOP had swept to its third consecutive lopsided victory in a presidential race. All it took to snatch disaster from the jaws of delirium was a stock-market crash in 1929 (fueled by the Fed) that turned into a recession that turned into a depression (also because of the Fed). The depression became the Great Depression, and it lasted until the eve of World War II, because of the activist policies of Herbert Hoover and Franklin Roosevelt, which suppressed recovery instead of encouraging it. There was even a recession (1937-38) within the depression, and the national unemployment rate was still 15 percent in 1940. It took the biggest war effort in the history of the United States to bring the unemployment rate back to its pre-depression level.

From that relatively brief but deeply dismal era sprang a new religion: faith in the central government to bring peace and prosperity to the land. Most Americans of the era — like most human beings of every era — did not and could not see that government is the problem, not the solution. Victory in World War II, which required central planning and a commandeered economy, helped to expunge the bitter taste of the Great Depression. And coming as it did on the heels of the Great Depression, reinforced the desperate belief — shared by too many Americans — that salvation is to be found in big government.

The beneficial workings of the invisible hand of competitive cooperation are just too subtle for most people to grasp. The promise of a quick fix by confident-sounding politicians is too alluring. FDR became a savior-figure because he talked a good game and was an inspiring war leader, though he succumbed to pro-Soviet advice.

With war’s end, the one-worlders and social engineers swooped on a people still jittery about the Great Depression and fearful of foreign totalitarianism. (The native-born variety was widely accepted because of FDR’s mythic status.) Schools and universities became training grounds for the acolytes of socialism and amoral internationalism.

Warren Henry is right when he says that

progressivism is…broadly accepted by the American public, inculcated through generations of progressive dominance of education and the media (whether that media is journalism or entertainment). Certainly Democrats embrace it. Now the political success of Donald J. Trump has opened the eyes of the Right to the fact that Republicans largely accept it….

Republicans have occasionally succeeded in slowing the rate at which America has become more progressive. President Reagan was able to cut income tax rates and increase defense spending, but accepted tax increases to kick the can on entitlements and could not convince a Democratic Congress to reduce spending generally. Subsequent administrations generally have been worse. A Republican Congress pressured Bill Clinton into keeping his promise on welfare reform after two vetoes. He did so during a period when the end of the Cold War and the revenues from the tech bubble allowed Washington to balance budgets on the Pentagon’s back. Unsurprisingly, welfare reform has eroded in the ensuing decades.

Accordingly, the big picture remains largely unchanged. Entitlements are not reformed, let alone privatized. To the contrary, Medicare was expanded during a GOP administration, if less so than it would have been under a Democratic regime…. Programs are almost never eliminated, let alone departments.

The Right also loses most cultural battles, excepting abortion and gun rights. Notably, the inroads on abortion may be due as much to the invention and deployment of the sonogram as the steadfastness of the pro-life movement. Otherwise, political and cultural progressivism has been successful in their march through the institutions, including education, religion, and the family.

Curricula increasingly conform to the progressive fashions of the moment, producing generations of precious snowflakes unequipped even to engage in the critical thinking public schools claim to prioritize over an understanding of the ages of wisdom that made us a free and prosperous people. Church membership and attendance continues their long-term decline. A country that seriously debated school prayer 30 years ago now debates whether Christians must be forced to serve same-sex weddings.

Marriage rates continue their long-term decline. Divorce rates have declined from the highs reached during the generation following the sexual revolution, but has generally increased over the course of the century during which progressivism has taken hold (despite the declining marriage rate). Those advocating reform of the nation’s various no-fault divorce laws are few and generally considered fringe.

There’s more, but disregard Henry’s reification of America when he should write “most Americans”:

Meanwhile, America has voted for decade after decade of tax-and-spend, borrow-and-spend, or some hybrid of the two. If the white working class is now discontented with the government’s failure to redress their grievances, this is in no small part due to the ingrained American expectation that government will do so, based on the observation that government typically hungers to increase government dependency (not that the white working class would use these terms).…

In sum, while it is correct to note that elites are not doing their jobs well, it is more difficult to conclude that elites have not been responding to the political demands of the American public as much as they have driven them.…

The presidential nominees our two major parties have chosen are largely viewed as awful. But Hillary Clinton and Donald Trump offer two slightly different versions of the same delusion: that progressivism works, if only the elites were not so stupid. This delusion is what most Americans currently want to believe.

Sad but disastrously true. Dependency on government has become deeply ingrained in the psyche of most Americans. As Timothy Taylor points out,

[g]overnment in the United States, especially at the federal level, has become more about transfer payments and less about provision of goods and services.…

[There has been an] overall upward rise [of transfer payments] in the last half-century from 5% of GDP back in the 1960s to about 15% of GDP in the last few years….

The political economy of such a shift is simple enough: programs that send money to lots of people tend to be popular. But I would hypothesize that this ongoing shift not only reflects voter preferences, but also affect how Americans tend to perceive the main purposes of the federal government. Many Americans have become more inclined to think of federal budget policy not in terms of goods or services or investments that it might perform, but in terms of programs that send out checks.

What lies ahead? Not everyone is addicted to government. There are millions of Americans who want less of it — a lot less — rather than more of it. Here, with some revisions and an addition, are options I spelled out three years ago:

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.

4. Civil disobedience — Certainly called for, but see options 5, 6, and 7.

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

6. The Benedict Option, about which Bruce Frohnen writes:

[Rod] Dreher has been writing a good deal, of late, about what he calls the Benedict Option, by which he means a tactical withdrawal by people of faith from the mainstream culture into religious communities where they will seek to nurture and strengthen the faithful for reemergence and reengagement at a later date….

The problem with this view is that it underestimates the hostility of the new, non-Christian society [e.g., this and this]….

Leaders of this [new, non-Christian] society will not leave Christians alone if we simply surrender the public square to them. And they will deny they are persecuting anyone for simply applying the law to revoke tax exemptions, force the hiring of nonbelievers, and even jail those who fail to abide by laws they consider eminently reasonable, fair, and just.

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

8. 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.

9. 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.

Glenn Reynolds, who is decidedly anti-coup, writes

that the American Constitution, along with traditional American political culture in general, tends to operate against those characteristics, and to make the American polity more resistant to a coup than most. It is also notable, however, that some changes in the Constitution and in political culture may tend to reduce that resistance….

The civics-book statement of American government is that Congress passes laws that must be signed by the president (or passed over a veto), and that those laws must be upheld by thejudiciary to have effect. In practice, today’s government operates on a much more fluid basis, with administrative agencies issuing regulations that have the force of law – or, all too often, “guidance” that nominally lacks the force of law but that in practice constitutes a command – which are then enforced via agency proceedings.…

[I]t seems likely that to the extent that civilians, law enforcement, and others become used to obeying bureaucratic diktats that lack a clear basis in civics-book-style democratic process, the more likely they are to go along with other diktats emanating from related sources. This tendency to go along with instructions without challenging their pedigree would seem to make a coup more likely to succeed, just as a tendency to question possibly unlawful or unconstitutional requirements would tend to make one less likely to do so. A culture whose basis is “the law is what the bureaucrats say it is, at least unless a court says different,” is in a different place than one whose starting impulse is “it’s a free country.”…

[P]ersistent calls for a government-controlled “Internet kill switch”49 – justified, ostensibly, by the needs of cyberdefense or anti-terrorism – could undercut that advantage [of a decentralized Internet]. If whoever controlled the government could shut down the Internet, or, more insidiously, filter its content to favor the plotters’ message and squelch opposition while presenting at least a superficial appearance of normality, then things might actually be worse than they were in [Fletcher Knebel and Charles Bailey’s Seven Days in May, which imagined an attempted coup by a Curtis LeMay-like general].…

[T]he most significant barrier to a coup d’etat over American history has probably stemmed simply from the fact that such behavior is regarded as un-American. Coups are for banana republics; in America we don’t do that sort of thing. This is an enormously valuable sentiment, so long as the gap between “in America” and “banana republics” is kept sufficiently broad. But it is in this area, alas, that I fear we are in the worst shape. When it comes to ideological resistance to coups d’etat, there are two distinct groups whose opinions matter: The military, and civilians. Both are problematic….

[T]here are some troubling trends in civilian/military relations that suggest that we should be more worried about this subject in the future than we have been in the past…

Among these concerns are:

  • A “societal malaise,” with most Americans thinking that the country was on “the wrong track.”
  • A “deep pessimism about politicians and government after years of broken promises,” leading to an “environment of apathy” among voters that scholars regard as a precursor to a coup.
  • A strong belief in the effectiveness and honor of the military, as contrasted to civilian government.
  • The employment of military forces in non-military missions, from humanitarian aid to drug interdiction to teaching in schools and operating crucial infrastructure.
  • The consolidation of power within the military – with Congressional approval – into a small number of hands….
  • A reduction in the percentage of the officer corps from places outside the major service academies.…
  • A general insulation of the military from civilian life…. “Military bases, complete with schools, churches, stores, child care centers, and recreational areas, became never-to-be-left islands of tranquility removed from the chaotic crime-ridden environment outside the gates…. Thus, a physically isolated and intellectually alienated officer corps was paired with an enlisted force likewise distanced from the society it was supposed to serve [quoting from an essay by Charles J. Dunlap, “The Origins Of The American Military Coup of 2012,” Parameters, Winter, 1992-93, at 2]….

[D]istrust in the civilian government and bureaucracy is very high. A 2016 Associated Press/National Opinion Research Center poll found that more than 6 in 10 Americans have “only slight confidence – or none at all” that the federal government can successfully address the problems facing the nation. And, as the AP noted, this lack of confidence transcends partisan politics: “Perhaps most vexing for the dozen or so candidates vying to succeed President Barack Obama, the poll indicates widespread skepticism about the government’s ability to solve problems, with no significant difference in the outlook between Republicans and Democrats.”

As a troubling companion to this finding, the YouGov poll on military coups…also found a troubling disconnect between confidence in civilian government and confidence in the military: “Some 71% said military officers put the interests of the country ahead of their own interests, while just 12% thought the same about members of Congress.” While such a sharp contrast in views about civilian government and the military is not itself an indicator of a forthcoming coup, it is certainly bad news. Also troubling are polls finding that a minority of voters believes that the United States government enjoys the consent of the governed.63 This degree of disconnection and disaffection, coupled with much higher prestige on the part of the military, bodes ill.

Or well, if you believe that a coup is the only possible salvation from despotism.

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 unless there is a negotiated partition of the country — perhaps in response to a serious secession movement — a coup is probably the only hope for the restoration of liberty under a government that is true to the Constitution.

The alternative is a continuation of America’s descent into despotism, which — as many Americans already know — is no longer the “soft” despotism foreseen by Tocqueville.

*      *      *

Related posts (in addition to those linked to throughout this one):
The Real Constitution and Civil Disobedience
A Declaration of Independence
A Declaration of Civil Disobedience
The States and the Constitution
And many more here

Now for Texit, and More

Unless the parliament of the so-called United Kingdom double-crosses the majority of English, Welsh, Scottish, and Northern Irish voters who approved Brexit, the UK will officially withdraw from the European Union. That’s good news for those of us who oppose dictatorship by distant bureaucrats.

There’s a parallel movement known as Texit, which is dedicated to the secession of Texas from the union known as the United States. Some backers of Texit believe wrongly that the Treaty of Annexation which made Texas a State has an escape clause. It doesn’t, but secession is nevertheless legal, not only for Texas but for all States.

It is telling — and encouraging — that even Donald Trump, the non-conservative and weak prospective GOP nominee, seems likely (at this date) to win the electoral votes of 20 States. In numbers there is strength. A secession movement would have a greater chance of success if it encompassed several States.

Sign me up.

The Answer to Judicial Supremacy

This long post, which seems to violate my resolve to avoid long posts, was almost complete when I began my blogging hiatus in August 2015. I took a bit of time today to finish it.

INTRODUCTION

I begin with the supposed similarity of Kim Davis’s refusal to issue same-sex “marriage” licenses and George Wallace’s anti-integration “stand in the schoolhouse door.” The similarity, some would say, is that both acts of defiance against rulings of the Supreme Court were acts intended to deny “equal protection of the laws” to certain groups (namely, homosexuals and blacks). But “equal protection” has too often been the Court’s tool for imposing on Americans the social preferences of its members (or a majority of them). The Court hasn’t just used its constitutional power to resolve “cases and controversies”; it has assumed law-making power. That power arises from “judicial supremacy,” which was conceived in Marbury v. Madison (1803) and attained maturity in Cooper v. Aaron (1958). Judicial supremacy is unconstitutional. Secession is a legal (constitutional) remedy for judicial supremacy — and much else that is rotten in the state of the union.

HOW ARE THESE THINGS THE SAME?

“What is the difference,” Timothy Sandefur asks rhetorically, between a county clerk in Kentucky defying the Supreme Court by refusing to issue marriage licenses to same-sex couples and George Wallace defying the Supreme Court by refusing to integrate the public schools of Alabama?

I take this as Sandefur’s point: There is no difference. In both instances, government officials defied the “law of the land” and denied “equal protection of the laws” to members of an “identity group” because of their membership in that group.

There is another similarity, which is omitted from Sandefur’s liberaltarian view of such acts of defiance. In both the segregation and same-sex “marriage” cases, the “law of the land” was peremptorily established by the Supreme Court, not by the passage of bills duly signed into law by the president of the United States or a governor of a State.

JEFFERSON’S PREMONITION

This raises the issue of judicial supremacy: the supposed power of the Supreme Court to enforce the Constitution for the other branches of the central government and the States. The truth of the matter was expressed more than 200 years ago, in a letter from Thomas Jefferson to Abigail Adams:

You seem to think it devolved on the judges to decide the constitutionality of the sedition law [the Alien and Sedition Acts, which Jefferson opposed] . But nothing in the Constitution has given them the right to decide for the Executive, more than the Executive to decide for them. Both magistracies are equally independent in the sphere of action assigned to them. The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because that power was placed in their hands by the Constitution. But the Executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power was placed in their hands by the Constitution. That instrument meant that its co-ordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the Legislature & Executive also, in their spheres, would make of the judiciary a despotic branch. [Quoted by Michael and Luke Paulsen in The Constitution: An Introduction, p. 136.]

(Jefferson was right to fear judicial despotism.)

Jefferson went further and proclaimed that the States, as the parties to the constitutional “compact” (his word), were the supreme arbiters of the Constitution. James Madison — father of the Constitution — sided with Jefferson at the time (though he back-tracked later in his life).

Michael Stokes Paulsen and Luke Paulsen, while characterizing Jefferson and Madison’s assertion of State supremacy as “inconsistent with the Constitution’s design,” say this:

Madison and Jefferson were right that state authorities have the right and duty to resist unconstitutional actions of the national government. Thus, the proper answer is that state government actors are legitimate constitutional interpreters, but not supreme ones. State officials, no less than federal officials, swear an oath to support the Constitution. And the structure of federalism, as we have seen in Chapter 2, makes states and state officials independent checks on the national government. It is therefore not at all outlandish to think that officers and instrumentalities of state governments possess an independent power of faithful constitutional interpretation— the power to interpret the Constitution (to borrow President Jackson’s words on a later occasion) as they understand it, “not as it is understood by others.” As demonstrated by Virginia’s and Kentucky’s resistance to the Alien and Sedition Acts, that power sometimes can be a valuable check on unconstitutional action by the national government.

But there is an important constitutional limit to this independent state interpretive power— a boundary that Madison defined inconsistently, that Jefferson disregarded entirely, and that (as we shall see) nullification and secession would attempt to breach violently: independent state power to interpret the Constitution does not mean state supremacy over the Constitution. No state, group of states, or state actor within them has the power to interpret the US Constitution in a way that binds the nation as a whole. Just as states are not literally “bound” by the federal government’s interpretations of the document, the federal government cannot be controlled in its actions by the interpretations of the state. The two levels of government operate as checks on each other, just as the several branches of the national government check one another. [Op. cit., pp. 135-136.]

I am satisfied by the Paulsens’ formulation. It should go without saying that a single State or group of them cannot dictate to all States. But it should also go without saying that the Supreme Court’s power is limited to deciding particular “cases and controversies” (Constitution, Article III, Clause 1), not to making law.

JUDICIAL LAW-MAKING AND THE “EQUAL PROTECTION” RACKET

But making law is precisely what the Supreme Court does when its members (or a majority of them) torture the Constitution to suit their political aims. And that’s what happened in Brown v. Board of Education and Obergefell v. Hodges.

Brown wasn’t decided on the basis of the Constitution, but by deference to Kenneth and Mamie Clark‘s phonydoll experiments.” This was clearly a stretch to justify the Court’s emotional disdain for Southern segregation. As Justice Clarence Thomas later put it:

Brown I [the name later applied to Brown v. Board of Education] did not say that “racially isolated” schools were inherently inferior; the harm that it identified was tied purely to de jure segregation, not de facto segregation. Indeed, Brown I itself did not need to rely upon any psychological or social-science research in order to announce the simple, yet fundamental truth that the Government cannot discriminate among its citizens on the basis of race…. At the heart of this interpretation of the Equal Protection Clause lies the principle that the Government must treat citizens as individuals, and not as members of racial, ethnic or religious groups. [Missouri v. Jenkins, 1995]

Separateness — voluntary economic and social segregation — is an inexorable force. Most of the segregation that existed in the nation, North and South, was voluntary and based on socioeconomic differences between the races. (Witness the gradual resegregation of public schools since the hay-day of the “Civil Rights Era” in the 1960s and 1970s.) It follows that Court-ordered integration (like State-ordered segregation) couldn’t be implemented without infringing on freedom of association, a right implicitly recognized by the Ninth Amendment. But infringement on freedom of association — along with violence and heightened racial animosity — predictably followed Brown. Brown III, for example, resulted in tests of “racial balance” (i.e. quotas). Brown also set the stage for the revocation of property rights ten years later, in the name of “public accommodations.”

The majority in Obergefell likewise relied on “equal protection.” But there the resemblance ends, pace Sandefur. The form of segregation targeted specifically by the Brown Court was government-enforced and thus also a denial of freedom of association, if not “equal protection.” The form of marriage targeted specifically by the Obergefell majority was a traditional religious and civil relationship that has been commandeered by government. Its heterosexual character was natural, not discriminatory, having arisen and endured because of the stabilizing social value of heterosexual attachments and the familial bonds that accompany them.

The Court’s resort to “equal protection” in Obergefell (and elsewhere) is a sham:

By the “logic” of [proponents of the legalization of same-sex “marriage”], it is unconstitutional to discriminate on any basis. Thus no one should be found unfit for a particular job (that saves Carpenter and Walker); no one should be found unfit for admission to a university; there should be no minimum age at which one is permitted to drink, drive, wed, or join the armed forces; there should be no prohibition of marriage between siblings; churches should be required to ordain atheists; and on and on.

Above all — by the same “logic” — the laws should not have any basis in morality. Because the imposition of morality results in “discrimination” against persons who cheat, beat, steal from, rape, and murder other persons. [“Getting ‘Equal Protection’ Right,” Politics & Prosperity, November 23, 2014]

THE MYTH OF “JUDICIAL SUPREMACY”

In any event, Brown and Obergefell are among the hundreds of cases in which the Supreme Court has made law, unconstitutionally. I say that will all due respect for Chief Justice John Marshall, who asserted that

[i]t is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each…. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure….

The judicial power of the United States is extended to all cases arising under the constitution…. Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.

In some cases then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey?…

[I]t is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!

The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: ‘I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States.’

Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him.

If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.

It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument. [Marbury v. Madison, 1803]

Marshall’s one-sided analysis omits the very real possibility that the courts will err (deliberately or not) in their interpretation of the Constitution.

Marbury led eventually to Cooper v. Aaron (1958), in which a unanimous Court

held that since the Supremacy Clause of Article VI made the US Constitution the supreme law of the land and Marbury v. Madison made the Supreme Court the final interpreter of the Constitution….

This is rather like a batter presuming to call balls and strikes for himself.

THE MYTH EXPOSED

But Marbury did not make the Supreme Court the final arbiter of the Constitution. I return to the Paulsens:

The Constitution’s words and structure do not set up one single, authoritative interpreter of the Constitution— contrary to the myth that has grown up around the often misunderstood case of Marbury v. Madison. The Constitution does not establish judicial supremacy, but constitutional supremacy: the supremacy of the document itself. And the Constitution’s system of separation of powers and even federalism set up a framework in which multiple actors— presidents, legislators, juries, and voters, as well as judges— each have a legitimate role to play in giving the Constitution practical effect and in checking the errors of the others. No one branch or institution has the sole power of constitutional interpretation. The Supreme Court did not write the Constitution, does not own the Constitution, and has not always correctly interpreted the Constitution. Our constitutional system has worked best when each and every government official and citizen has taken a full, active, faithful role in interpreting the Constitution. [Op. cit., pp. 320-322]

That is only the conclusion of a long, compelling analysis. I urge you to read it for yourself. Though you will be forgiven if you disagree with the Paulsens’ nationalistic view of the Constitution. I disagree with it, vehemently. (See this post, for example.)

NO WAY OUT?

The problem is that Congress — even when its majorities oppose the Court’s decisions — has failed to use (or to use often enough) the constitutional tools at its disposal: impeachment, jurisdiction-stripping, and outright defiance. Alexander Hamilton was unduly optimistic (or just trying to sell nationalization of the States) when he wrote this:

It may … be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments. [Federalist No. 81]

Hamilton’s misplaced faith in the Constitution’s checks and balances (if it was that) is an example of what I have called the Framers’ fatal error:

The Framers underestimated the will to power that animates office-holders. The Constitution’s wonderful design — horizontal and vertical separation of powers — which worked rather well until the late 1800s, cracked under the strain of populism, as the central government began to impose national economic regulation at the behest of muckrakers and do-gooders. The Framers’ design then broke under the burden of the Great Depression, as the Supreme Court of the 1930s (and since) has enabled the central government to impose its will at will. The Framers’ fundamental error can be found in Madison’s Federalist No. 51. Madison was correct in this:

…It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure….

But Madison then made the error of assuming that, under a central government, liberty is guarded by a diversity of interests:

[One method] of providing against this evil [is] … by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable…. [This] method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.

In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased….

Madison then went on to contradict what he said in Federalist No. 46 about the States being a bulwark of liberty:

It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE.

Madison understood that a majority can tyrannize a minority. He understood that the States are better able to prevent the rise of tyranny if the powers of the central government are circumscribed. But he then assumed … that the States themselves could not resist tyranny within their own borders. Madison overlooked the importance of exit as the ultimate check on tyranny. He assumed (or asserted) that, in creating a new central government with powers greatly exceeding those of the Confederacy, a majority of States would not tyrannize the minority and that minorities with overlapping interests would not concert to tyrannize the majority. Madison was so anxious to see the Constitution ratified that he oversold himself (possibly) and the States’ ratifying conventions (certainly) on the ability of the central government to hold itself in check. Thus the Constitution was lamentably silent on nullification and secession.

What has been done by presidents, Congresses, and courts will be very hard to undo. Too many interests are vested in the regulatory-welfare state that has usurped the Framers’ noble vision. Democracy (that is, vote-selling) and log-rolling are more powerful than words on paper. Even a Supreme Court majority of “strict constructionists” probably would decline to roll back the New Deal and most of what has come in its wake. [“Liberty and Federalism,” Liberty Corner, March 12, 2006]

THE CONSTITUTION AS A USEFUL TOOL

It is no wonder that I have come to view the Constitution cynically:

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….

2. Despite their status as “representatives of the people,” the various fractions of the populace that drafted and ratified the Constitution had no moral authority to bind all of their peers, and certainly no moral authority to bind future generations….

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….

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, … 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. [“How Libertarians Ought to Think About the Constitution,” Politics and Prosperity, February 22, 2014]

There is, in sum, a strong legal case for secession, pace the Paulsens, who (strangely) view the Civil War — a war mind you — as legally dispositive. I have spelled out the legal case for secession (and the legal irrelevance of the Civil War) in several posts at Politics & Prosperity, including “Secession” (April 17, 2009), “Secession Redux” (July 2, 2009), “A Declaration of Independence” (March 30, 2010), and “The States and the Constitution” (September 6, 2014). I recommend that you read all of the posts (and the ones linked to within them), but if you don’t have the time to do that, consider this passage from “The States and the Constitution”:

Finally, in The Federalist No. 39, which informed the debates in the various States about ratification,  Madison says that

the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves….

That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act…. [underlining added]

As each State was free to ratify the Constitution (or not), so is each State legally free to withdraw its ratification, that is, to secede.

THE ONLY WAY OUT

When all is said and done, the only escape from the judicial tyranny that has arisen under the Constitution is to withdraw from the union it represents. Though an act of secession cannot represent the will of all the people of a State, it would almost certainly represent the wishes of a vast majority of the people of the seceding State. Given the impossibility of unanimous consent, I would gladly side with the pro-liberty secessionist forces of my State. The alternative is to march in lockstep to the incessant drumbeat that measures America’s descent into “soft” despotism.

Not-So-Random Thoughts (XVI)


Links to the other posts in this occasional series may be found at “Favorite Posts,” just below the list of topics. This is an especially long entry in the series, so I’ve labeled each item. You can navigate directly to items by clicking on any of the following links:

“Libertarian” Paternalism

Drug Prohibition

Unconstitutionality of Social Security and Medicare

Où est Charlie Hebdo?

Speaking of Censorship

Censorship-Plus

The Disparate Impact of Government

Putting the Civil War in Perspective

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“Libertarian” Paternalism

Timothy Taylor asks “Who Will Nudge the Nudgers?” in a post about a paper by W. Kip Viscusi and Ted Gayer:

Viscusi and Gayer point out a number of reasons why less-than-rational behavioral responses may be more prevalent among government decision-makers than for economic actors in the private economy. Here are some examples: 1) Private actors (like consumers and firms) need to bear the immediate costs of their decisions in a direct way, while elected officials and regulators do not. 2) Public policies are often influenced by the loud voice of concentrated special interests, who can overwhelm the quieter and more diffuse voices for the general interest. 3) Market actions evolve from an interaction of many buyers and sellers, and the checks and balances that such a process provides, but government actions can evolve from a much smaller number of potentially overconfident technocrats, who have a personal and career interest in pushing their own agendas. [The Conversible Economist, July 21, 2015]

There’s much more. Read it, then see my post, “The Perpetual Nudger.” I point out that “nudgers” (e.g., Richard Thaler) are really wannabe dictators:

What seems to bother Thaler is that most people aren’t Econs [hyper-rational calculators]; their tastes and preferences seem irrational to him, and it’s his (self-appointed) role in life to force them to make “correct” decisions (i.e., the decisions he would make).

There’s much more in the many posts to which I link at the end of “The Perpetual Nudger.”

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Drug Prohibition

The estimable Theodore Dalrymple strikes again:

[I]t is not true that problems with drugs arise only when or because they are prohibited.

The relationship between crime and drug prohibition is also much more complex than the legalizers would have us believe. It is certainly true that gangs quickly form that try to control drug distribution in certain areas, and that conflict between the aspirant gangs leads to violence…. But here I would point out two things: first that the violence of such criminal gangs was largely confined to the subculture from which they emerged, so that other people were not much endangered by it; and second that, in my dealings with such people, I did not form the impression that, were it not for the illegality of drugs, they would otherwise be pursuing perfectly respectable careers. If my impression is correct, then the illegality of drugs might protect the rest of society from their criminality: the illegal drug trade being the occasion, but not the cause, of their violence.

What about Prohibition, is the natural reply? It is true that the homicide rate in the United States fell dramatically in the wake of repeal. By the 1960s, however, when alcohol was not banned, it had climbed higher than during Prohibition…. Moreover, what is less often appreciated, the homicide rate in the United States rose faster in the thirteen years before than in the thirteen years during Prohibition. (In other respects, Prohibition was not as much of a failure as is often suggested: alcohol-related problems such as liver disease declined during it considerably. But no consequences by themselves can justify a policy, otherwise the amputation of thieves’ hands would be universal.) Al Capone was not a fine upstanding citizen before Prohibition turned him into a gangster. [“Ditching Drug Prohibition: A Dissent,” Library of Law and Liberty, July 23, 2015, and the second in a series; see also “The Simple Truth about J.S. Mill’s Simple Truth,” op. cit., July 20, 2015; “Myths and Realities of Drug Addiction, Consumption, and Crime,” op. cit., July 31, 2015; and “Closing Argument on the Drug Issue,” op. cit., August 4, 2015]

This reminds me of my post, “Prohibition, Abortion, and ‘Progressivism’,” in which I wrote about the Ken Burns series, Prohibition. Here’s some of it:

Although eugenics is not mentioned in Prohibition, it looms in the background. For eugenics — like prohibition of alcohol and, later, the near-prohibition of smoking — is symptomatic of the “progressive” mentality. That mentality is paternalistic, through and through. And “progressive” paternalism finds its way into the daily lives of Americans through the regulation of products and services — for our own good, of course. If you can think of a product or service that you use (or would like to use) that is not shaped by paternalistic regulation or taxes levied with regulatory intent, you must live in a cave.

However, the passing acknowledgement of “progressivism” as a force for the prohibition of alcohol is outweighed by the attention given to the role of “evangelicals” in the enactment of prohibition. I take this as a subtle swipe at anti-abortion stance of fundamentalist Protestants and adherents of the “traditional” strands of Catholicism and Judaism. Here is the “logic” of this implied attack on pro-lifers: Governmental interference in a personal choice is wrong with respect to the consumption of alcohol and similarly wrong with respect to abortion.

By that “logic,” it is wrong for government to interfere in or prosecute robbery, assault, rape, murder and other overtly harmful acts, which — after all — are merely the consequences of personal choices made by their perpetrators. Not even a “progressive” would claim that robbery, assault, etc., should go unpunished, though he would quail at effective punishment.

“Progressives” just don’t know where to draw lines. (Witness the many phantom red lines that Obama has drawn for Syria and  Iran.) It’s centuries too late to prohibit the consumption of alcohol (not that I’d wish it had happened); it’s still not too late to prohibit the consumption of hard, death-dealing drugs. If those drugs are legalized, it won’t be long before taxpayers are forced to pay for the drug habits of a growing population of drug abusers. That’s the “progressive” way.

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Unconstitutionality of Social Security and Medicare

Mike Rappaport makes the case, and concludes with this:

Now that we have had Social Security and Medicare for generations and people have relied upon them, I don’t think that the original meaning can be enforced to hold them unconstitutional.  Precedent should allow them to continue.  But it is worth remembering that these programs would have never taken their pernicious form if the Constitution’s original meaning had been followed in the first place. [“The Unconstitutionality of Social Security and Medicare,” Library of Law and Liberty, July 23, 2015]

This comes as no surprise to me. Here’s a bit from a recent post, “Does the Power to Tax Give Congress Unlimited Power? (II),” which refers to a much older one:

[T]he power to tax is not unlimited. Taxes levied by the central government must be levied for the purpose of executing powers specifically enumerated in Article I, Section 8 of the Constitution. Nevertheless, the majority NFIB v. Sebelius chose not only to distort the individual mandate — which is clearly a penalty, not a tax — but also to willfully disregard the Constitution’s expressed limitations on the powers of Congress. Even if the individual mandate were a tax, Congress cannot constitutionally levy such a tax because the Affordable Care Act isn’t contemplated in its enumerated powers. (ACA derives its supposedly constitutional status from the Court’s decision in 1935 to declare the Social Security Act constitutional, even though it isn’t. See my post of October 31, 2004, “Social Security Is Unconstitutional.”)

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Où est Charlie Hebdo?

As dead (in spirit) as the 12 who were murdered in January. Mark Steyn writes:

I mentioned a few days ago the announcement by Charlie Hebdo that they are no longer in the business of Mohammed cartoons:

So another non-senseless act has paid off bigtime for the Islamic enforcers. I regret the decision, although I understand it.

Which I do. Almost everyone who mattered at Charlie Hebdo is dead. What did they die for? A hashtag and a candlelight vigil? None of those who seized eagerly on #JeSuisCharlie as the cause du jour, from Angela Merkel and François Hollande to George Clooney and Helen Mirren to thousands in the streets of Paris and millions across the Internet, were willing to do the one thing that would have mattered, and show the reason why they died. Which is why such sterling champions of free speech as PLO leader Mahmoud Abbas and Sultan Erdogan’s vizier Ahmet Davutoglu were happy to march in the big post-slaughter parade. Do you think they’d have been there if any of the dead’s multitudes of new “friends” were waving Charlie magazine covers?…

And so, after a similar but fortunately less bloody attack in Texas [link added], virtually the entire American media decided to blame the victim and took it as read that Islam now has an opt-out from the First Amendment. You can’t fence off Islam and contain the damage to freedom of speech: the decision to surrender it incrementally leads inevitably to its total loss. On the day of his murder, I quoted the words of Stéphane “Charb” Charbonnier, Laurent Sourisseau’s predecessor as Charlie editor, from two years earlier:

It may seem pompous, but I’d rather die standing than live on my knees.

It’s not pompous, but it is lonely. And the slippery, weaselly nature of the post-bloodbath support told Charlie Hebdo it was only going to get lonelier. It’s hard standing on your feet when everyone else with the #JeSuisCharlie buttons is on their knees, bottoms in the air, prostrate before the fanatics. And so Charb’s successor has opted to live on his knees. [“The Knees Have It,” SteynOnline, July 22, 2015]

Color me unsurprised. In the aftermath of the slaughter in January, I wrote “Sober Reflections on ‘Charlie Hebdo’.” Here’s some of it:

[Charlie Hebdo is] a stridently left-wing rag that mocks religion (of all kinds), and anything else deemed too “respectable” for the adolescent tastes of its staff.

What’s most striking about the “Je suis Charlie” movement is its pure hypocrisy….

Yes, the left gets up in arms when some of its members are slaughtered by Muslim pigs (I love that phrase). But this is the same, hypocritical left that condones and promotes censorship….

The slaughter at Charlie Hebdo is not a reason for solidarity with the left, but a reason to oppose the left and its clients — especially (but not exclusively) the murderous adherents of Islam.

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Speaking of Censorship

Erick Erickson writes about

an organized movement within the gay rights community that is sometimess referred to as the “gay mafia.” They want to harass those who disagree with their agenda and silence any dissent from their agenda. They have worked overtime in the past twenty-four hours because an AP poll shows that the number of Americans who now support gay marriage has declined since the Supreme Court’s ruling and a majority believe Christian businesses should not be compelled to provide goods and services to gay weddings.

They cannot have that. They also cannot have books and data that dispute their claims. One such book is by my friend Ryan Anderson. The book is called Truth Overruled: The Future of Marriage and Religious Freedom. A subgroup of the gay mafia who call themselves “Flying Monkeys” are flinging poo in the direction of Ryan’s book.

In particular, they have organized a campaign to down vote Ryan’s book on Amazon.com. The Daily Signal has screenshots of the gay mafia’s online conversations encouraging people to go “review” Ryan’s book and give it one star reviews.

The people have not read the book. But they want you to think the book is a terrible read. They are attacking Ryan personally and attacking arguments they have not even read. Anyone who knows Ryan knows he takes a very scholarly approach to the marriage arguments and has provided a great deal of foresight into the movement again marriage.

You can order Ryan’s book on the Kindle now or get a print edition next month via Amazon. I highly recommend it. [“The Gay Mafia Wants to Stop You from Doing This,” RedState, July 21, 2015]

I have ordered it.

We in the U.S. have thus far been spared the excesses of censorship that plague Canada. One such excess is the subject of my post, “Free Speech Ends at the Northern Border.” That an overstatement, of course, because censorship is rife in America, especially on college campuses. Just check out the website of The Foundation for Individual Rights in Education.

See also my posts “The Gaystapo at Work,” “The Gaystapo and Islam.” “The Beginning of the End of Liberty in America,” and “The Tenor of the Times.”

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Censorship-Plus

In a closely related development, there’s a portentous recent ruling by the Equal Employment Opportunity Commission:

Last week, the Equal Employment Opportunity Commission dropped an astounding ruling: By a 3-2 vote, it concluded that “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”

This is a big deal: The Commission’s recommendations shape rulings on federal employees’ workplace-discrimination claims, and its field offices deal with claims made by employees at private organizations, as well. But the ruling is also a reminder of how complicated—and unresolved—the post-Obergefell legal landscape is. The Supreme Court’s ruling in favor of same-sex marriage at the end of June has set the country up for two new waves of discrimination claims: those made by same-sex couples and LGBT workers, and those made by religious Americans who oppose same-sex marriage. The two may seem distinct or even opposed, but they’re actually intertwined: In certain cases, extending new rights to LBGT workers will necessarily lead to religious-freedom objections, and vice versa.

Right now, it’s impossible to know how these claims will fall out. It’s been less than a month since the ruling, and much of the legal theory on these issues is just that: theory. In Congress, there’s at least some effort to reconcile the two sides. As my colleague Russell Berman wrote on Friday, Democrats are pushing for legislation which would include prohibitions on discrimination in education, housing, and public accommodation, and Republicans may well sign on—if that legislation allows for religious exemptions. No matter what passes, the issues will remain tangled. These will be some of the questions courts and legislatures have to untangle in the wake of Obergefell. [Emma Green, “Gay Rights May Come at the Cost of Religious Freedom,” The Atlantic, July 27, 2015]

It’s not just religious liberty that’s under attack, it’s liberty — period. It’s clear that the federal government is gearing up to tell Americans what they may say about others and who they must associate with, like it or not:

Most citizens will, of course, attempt to exercise their freedom of speech, and many business owners will, of course, attempt to exercise their freedom of association. But for every person who insists on exercising his rights, there will be at least as many (and probably more) who will be cowed, shamed, and forced by the state into silence and compliance with the new dispensation. And the more who are cowed, shamed, and forced into silence and compliance, the fewer who will assert their rights. Thus will the vestiges of liberty vanish.

That’s from my post, “The Beginning of the End of Liberty in America,” which I published on the day of the Obergefell diktat.

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The Disparate Impact of Government

Speaking of impending atrocities, Michael Barone takes on “HUD’s ‘Disparate Impact’ War on Suburban America“:

Disparate impact. It’s a legal doctrine that may be coming soon to your suburb (if you’re part of the national majority living in suburbs).

Bringing it there will be the Obama Department of Housing and Urban Development’s Affirmatively Furthering Fair Housing program. It has been given a green light to impose the rule from Justice Anthony Kennedy’s majority opinion in the Supreme Court’s 5-4 decision [link added] in Texas Department of Housing and Community Affairs v. Inclusive Communities Project. [Kennedy must have been warming up for his Obergefell diktat, which came on the following day. — TEA]

The decision purports to interpret the Fair Housing Act of 1968 as authorizing lawsuits if municipal policies have a “disparate impact” as measured by the racial percentages of those affected — this despite the fact that the words of the Fair Housing Act prohibit only intentional racial discrimination….

In every large metropolitan area with a significant black population, you won’t find a single census tract with 0 black residents. Blacks sometimes encounter resistance when trying to buy or rent a house that they can afford, which is unjust and infuriating, and a problem for which the Fair Housing Act provides remedies.

But, of course, that has not created an America in which every community has the same percentage as the national average of blacks and whites, Hispanics and Asians, marrieds and singles, gays and straights, Protestants and Catholics and Jews and Muslims.

Free choice never shakes out that way. Throughout history, Americans and immigrants have tended to choose to cluster with likeminded people….

How did disparate impact come into the law? In a 1971 Supreme Court case, Griggs v. Duke Power Co., the Court, acting when memory was still fresh of Southern resistance to desegregation, ruled that the company’s aptitude test amounted to discrimination because whites passed at higher rates than blacks. But that’s true of most aptitude tests — which as a result aren’t used much in hiring any more. [creators.com, July 21, 2015]

Don’t tell it to the “social justice” police in D.C. They don’t want to hear it.

The 1971 “disparate impact” ruling by the Supreme Court ranks among the 16 cases that I list as examples of “the judicial betrayal of the constitutional scheme of limited government, and of order and traditional morality,” in “The Fall and Rise of American Empire.” (I would now add the Kennedy Court’s decisions about “disparate impact,” same-sex “marriage,” and Obamacare subsidies.)

“Disparate impact” isn’t just about where people live and work. Malcolm Pollack is on the case:

Here is an item that’s been going around over the past couple of days: an essay by Paul Sperry describing the Obama administration’s latest race-leveling operation.

The idea is to fish for “disparate impact” violations, wherever they can be found — in housing, lending, school discipline, academic performance, enrollment in gifted-student programs, etc. — and to use the coercive power of the State to flatten outcomes.

The Left has a secret weapon here, and in the current cultural climate, it’s a beaut. Here’s how it works:

1) If you go looking for disparate outcomes by racial groups (or by sex), you’ll certainly find them. They are real, and persistent. (See, for example, just how persistent they can be, here.)

2) When such disparate outcomes occur, there are only two possible causes: either they are due to an external obstacle, or something intrinsic to the group itself.

3) If all racial groups are assumed, as by current social convention they must be, to have exactly identical distributions of every cognitive and behavioral trait, then any variation in outcome that disparately affects a particular racial group must be evidence of some external obstacle. This can only be due to racism and injustice, and therefore it is just and proper for the State to detect and remove it, by whatever means necessary.

4) If however, you suggest that disparities under neutral policies may be due, even in part, to innate differences in the distribution of cognitive and behavioral characteristics in different racial groups, then you are a racist. (If you present actual evidence of such differences, you’re a “scientific” racist.) Moreover, the fact that you are even thinking such things is evidence of the persistence and prevalence of racism in general, which in turns confirms the assumption that disparate outcomes are the result of pervasive and intractable racism, and not innate differences. This is what justifies redoubled efforts on the part of the State to bring every aspect of our lives under racial scrutiny, and impose corrective measures wherever disparate outcomes are found.

So: notwithstanding that race, as we are told, is a “social construct” with no basis in reality, the government will spare no effort to group people by race, and to scour vast collections of intrusively gathered data to find inequalities in social and economic outcomes — not on any individual basis, but by race. But despite race being real enough, apparently, to justify making such racial categorizations, race can have no deeper reality as regards any shared characteristics that might contribute to such inequalities. Race is, in other words, real, but only real enough to serve, somehow, as a marker for defining groups, and thereby to serve as the basis of racism, without having any other actual properties. Moreover (and this is what makes the whole thing work so beautifully): if you disagree with any of this, you are yourself a racist — and you have thereby just demonstrated that persistent racism is indeed the problem.

Thanks to this secret weapon, we have moved beyond — far beyond — the idea that particular differences in outcomes may be due to specific and remediable instances of conscious and intentional racism. As we go Forward, we have a new paradigm: differences in outcomes simply ARE racism, now and forever.

That’s some catch!

[“A Respectful Whistle,” waka waka waka, July 21, 2015]

(I couldn’t resist reproducing Pollack’s brilliant post in its entirety. If you don’t already follow his blog, you should do so.)

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Putting the Civil War in Perspective

Walter Williams does it brilliantly:

Was President Abraham Lincoln really for outlawing slavery? Let’s look at his words. In an 1858 letter, Lincoln said, “I have declared a thousand times, and now repeat that, in my opinion neither the General Government, nor any other power outside of the slave states, can constitutionally or rightfully interfere with slaves or slavery where it already exists.” … Debating Sen. Stephen Douglas, Lincoln said, “I am not, nor ever have been, in favor of making voters or jurors of Negroes nor of qualifying them to hold office nor to intermarry with white people; and I will say in addition to this that there is a physical difference between the white and black races, which I believe will forever forbid the two races living together on terms of social and political equality.”

What about Lincoln’s Emancipation Proclamation? Here are his words: “I view the matter (of slaves’ emancipation) as a practical war measure, to be decided upon according to the advantages or disadvantages it may offer to the suppression of the rebellion.” …

Lincoln did articulate a view of secession that would have been heartily endorsed by the Confederacy: “Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government and form a new one that suits them better. … Nor is this right confined to cases in which the whole people of an existing government may choose to exercise it. Any portion of such people that can may revolutionize and make their own of so much of the territory as they inhabit.” Lincoln expressed that view in an 1848 speech in the U.S. House of Representatives, supporting the secession of Texas from Mexico.

Why didn’t Lincoln share the same feelings about Southern secession? Following the money might help with an answer. Throughout most of our nation’s history, the only sources of federal revenue were excise taxes and tariffs. During the 1850s, tariffs amounted to 90 percent of federal revenue. Southern ports paid 75 percent of tariffs in 1859. What “responsible” politician would let that much revenue go? [“Historical Ignorance II,” creators.com, July 22, 2015]

(There’s more in William Sullivan’s “Lincoln vs. Lee: How History Is Distorted to Preserve Legends,” American Thinker, August 1, 2015.)

Yes, it can be asserted (with some degree of accuracy) that slavery was the proximate cause of the Civil War, because it was the issue of slavery that brought to a head the longstanding tension between North and South. But the leaders of the South also had a righteous cause, in principle: the cause of constitutional government. This is from my post, “The Southern Secession Reconsidered“:

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. [Chapter and verse follow.]

My current view of the Constitution — “How Libertarians Ought to Think About the Constitution” — is more cynical and sweeping:

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….

2. Despite their status as “representatives of the people,” the various fractions of the populace that drafted and ratified the Constitution had no moral authority to bind all of their peers, and certainly no moral authority to bind future generations….

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….

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 … 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….

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.

If the feds continue their assault on liberty, secession will become an increasingly attractive option. There are other options, including de facto secession.

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Signature

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)

Links to the other posts in this occasional series may be found at “Favorite Posts,” just below the list of topics.

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.