Prior post on this subject are Regarding the Myth of the Right of State Secession and the previous Is There a Right to Secession- Intro
I shall in the following posts deal with some works by the blogger Cajun Huguenot that takes a pro- secession viewpoint in which I oppose. Those are located here at Secession? , Secession Discussion, and Thomas Jefferson and Secession.
Cajun starts out in his post The Constitution and Secession with the following:
The federal government is a creation of the states that formed the union. These states were sovereign powers and each joined the new federal union, created by the Constitution, by way of ratifying conventions. The member states in the Federal union did not forfeit their sovereignty when they joined the new confederated republic. They joined as states and did not become provinces of the federal system they created. This was universally understood by the founders and the generation to follow. State sovereignty was not challenged until the 1830's. It was about that time that a debate began as to the nature of the American system we received with the constitutional union.
Now the above is my view a combination of truth, misconceptions, and red herrings. In these debates as we have see in history there are other concepts and debates in the background. I would suggest that even Lincoln or most Union men did not think that the States had lost all sovereignty or became mere provinces-Like Rome ruling Gaul. These Northern Governors at the time were quite jealous of their own power too.
In fact in the Post Civil War Supreme Court Case Texas V White of 1869 that was headed by Chief Justice Salmon Chase, himself a former cabinet member under Abraham Lincoln and leading figure in the Union government during the American Civil War, we see that Federalism was a big issue. While the opinion plainly stated no State has a right to secede it also said:
But the perpetuity and indissolubility of the Union, by no means implies the loss of distinct and individual existence, or of the right of self-government by the States. Under the Articles of Confederation each State retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still, all powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively, or to the people. And we have already had occasion to remark at this term, that "the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence," and that "without the States in union, there could be no such political body as the United States."
Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.
So I think it is very important to realize that Union leaders believed for the most part in true concept of Federalism. This often get obscured and it obscured often for a modern political agenda. . For instance there is often a interesting slight of hand that we see in these debates. I often here that people state that the the Federal Govt is a Govt of Limited Power. No that is not what the Constitution says. It says the Federal Government is a Govt of Limited Powers There is a key difference.
Before I get into the the Constitutional issues I do not want let pass something else Cajun says in his post.
The South remained true to the founding principles. Her leaders were strict constructionists. Men such as Thomas Jefferson, John Randolph of Roanoke, John C. Calhoun, and Jefferson Davis had a clear understanding of the founding principles of the United States Constitution. Massachusetts' politicians began to deny those aspects of American political history that had been so widely and clearly understood. In our day the political leaders from Massachusetts are still at the forefront of distorting what little remains of true constitutional government in the United States, and they have plenty of help from all regions of the U.S.
Now what is interesting is of course what names are left out in the above list of Southern leaders . I shall touch on that later. I shall also touch on as my post on Jefferson and Madison the strange Papal Infallibility that is given to Jefferson it seems as to his every utterance on what he had to say on Government. An infallibility that seems to be extended to no one else from founding era.
But one thing must be made clear. It was largely Southern leaders that were trying to expand Federal Power beyond it means to protect their political power and in the end economic interest that was tied to slavery. This reached its zenith at the Democrat convention in 1860. At that convention in Charleston the South walked out because Douglas refused to give into demands on a Federal Slave code. A slave code that would have expanded Federal power in a way not seen till the New Deal.
What is the Union?
First let me say I am truly indebted to this paper available for download. How Libertarians Ought to Think About the U.S. Civil War . One does not have to be a Libertarian to undertand the importance of his arguments. I highly recommend people read it and the quotes I take below come directly from that paper.
I suppose there are three theories to the Union . They are the Compact theory, the strong Union view, and the weak Union view.
Under the compact theory, the Federal union contains no inherent element of sovereignty—it is a league of sovereign states. It is sort of like NATO. According to the compact theory,each state is a sovereign entity which is bound to the other states only by a compact which it may break whenever the compact imposes unbearable burdens on the state—just as a country may decide to break a treaty. It is my contention that that such a theory cannot be held with history or the intent of most of the founders. This theory largely came into its current form under Calhoun in the 1830's
Opposite the compact theory there are two theories in mark opposition. We can call them the weak Union and strong Union theory. According to both these views , the federal Constitution IE the Federal Union contains at least some element of sovereignty.
The Strong Union views was adopted by people such as Daniel Webster and Lincoln himself in some regards. That is the union of states predates the Constitution itself: it was created by the Declaration of Independence,
and the sovereignty of the states was itself a consequence or product of national sovereignty. There is a lot of evidence to back that this was the view of many of the founders.
At the 1787 Philadelphia Convention, Delegate Rufus King of from Massachusetts explained that:
The states were not “sovereigns” in the sense contended for by some.
They did not possess the peculiar features of sovereignty,—they could not
make war, nor peace, nor alliances, nor treaties. Considering them as
political beings, they were dumb, for they could not speak to any foreign
sovereign whatever. They were deaf, for they could not hear any
propositions from such sovereign. They had not even the organs or
faculties of defence or offence, for they could not of themselves raise
troops, or equip vessels, for war.... If the states, therefore, retained some
portion of their sovereignty [after declaring independence], they had
certainly divested themselves of essential portions of it.
Well he was a Yankee you might say. Well what about the esteemed delgate from the South Carolina Charles Cotesworth Pinckney that was at the Convention.
“[t]he separate independence and individual sovereignty of the several states were never
thought of by the enlightened band of patriots who framed this Declaration; the several
states are not even mentioned by name in any part of it,—as if it was intended to impress
this maxim on America, that our freedom and independence arose from our union, and
that without it we could neither be free nor independent.”
This Southerner is among many that are sometimes forgotten by the pro secession viewpoint folks.
The “weak-union” view was most famously explained by James Madison the Father of the Constitution and also a Southerner. According to it, the Articles of Confederation did indeed acknowledge the separate sovereignty of the American states which was becoming part of the problem in some areas.
The new Constitution would solve this problem by creating a new kind of government. This new Government would be one of “divided sovereignty,” That is one partly national and partly federal, in which all of the people of America would vest the national government with a part limited and enumerated—of their sovereignty. The national sovereignty would therefore be totally separate from the sovereignty of the states.
This is why Madison insisted that the Constitution be ratified, not by state legislatures, but by special ratification
conventions to make clear that the states were not parties to the Constitution.
The above fact if often just ignored by people that think there is a right to secession because a theory of State compact. John Marshall another Southerner (also largely ignored by pro secession folks) and one of the early Chief Justices of the Supreme Court who had been a delegate to the Virginia Ratification Convention said in McColloch v. Maryland:
[The Constitution] was submitted to the people. They acted upon it in the
only manner in which they can act safely, effectively, and wisely, on such
a subject, by assembling in Convention. It is true, they assembled in their
several States—and where else should they have [*69] assembled? No
political dreamer was ever wild enough to think of breaking down the
lines which separate the States, and of compounding the American people
into one common mass. Of consequence, when they act, they act in their
States. But the measures they adopt do not, on that account, cease to be the
measures of the people themselves, or become the measures of the State
governments.
These sources reveal how well understood that the Constitution was government of the whole people of the United States and not just not a league or treaty of states in their corporate capacities, as the compact theory advocated by Calhoun and his followers much later.Marshal also stated: federal sovereignty:
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
In essence Sovereignty was split!!! Neither the Federal or State could absolve citizens of their responsibilities under either. This was the genus of the Constitution.
I shall further explore Madison thoughts later in combination with Jefferson as to the controversial Kentucky and
Virginia resolutions that are often used to try to show some sort of compact theory. Madison spent many years trying to explain over and over again that people were misunderstanding what he thought on the subject. We see this in the nullification crisis when Madison was explaining to John Calhoun how misguided he was. He stated
Madison stated just as he had at the Philadelphia and Richmond conventions, that the Constitution was binding on the people, not on the states, and the states had no right to nullify the laws:
[T]he characteristic peculiarities of the Constitution are 1. The mode of its
formation, 2. The division of the supreme powers of Govt between the
States in their united capacity and the States in their individual capacities.
1. It was formed, not by the Governments of the component States, as the
Federal Govt. for which it was substituted [i.e., the Articles of
Confederation] was formed; nor was it formed by a majority of the people
of the U.S. as a single community in the manner of a consolidated
Government. It was formed by the States—that is by the people in each of
the States, acting in their highest sovereign capacity; and formed,
consequently, by the same authority which formed the State Constitutions.
Being thus derived from the same source as the Constitutions of the States,
it has within each State, the same authority as the Constitution of the State,
and is as much a Constitution, in the strict sense of the term, within its
prescribed sphere, as the Constitutions of the States are within their
respective spheres, but with this obvious & essential difference, that being
a compact among the States in their highest sovereign capacity, and
constituting the people thereof one people for certain purposes, it cannot
be altered or annulled at the will of the States individually, as the
Constitution of a State may be at its individual will.39
In any event it appears the NATO Version of the Union AKA the compact theory is indeed on very shaky ground.
My next post will deal with if the mechanism of secession is in the Consitution or implied within it. Coming up next.
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