A fellow writer that I have collaborated with over at
ASP
recently challenged me with what I can only term a dilemma of principle. It
seems we often tell only half the truth, because I suppose we fear folks
just will not accept the full story. He is correct, by denying what we know
to be true out of fear that others may not accept the ideas is to sell out
to pragmatism.
I hope that I can convince him to write a piece for our collective
edification on the subject we discussed. I will attempt to do my best here
to articulate a point held by many in our movement (I refer to the larger,
more encompassing freedom movement - for lack of a better term). I warn you
this is controversial, especially to those new to thoughts of change. At the
same time these points are critical. The reason we fight is not that we
merely want to see change. At the very core of our ideology is the knowledge
that things have gone awry and we can point with surety to when and how.
There is a legal concept I am not certain everyone in our movement is
familiar with. This subject is fraught with the potential for
misunderstanding. Each side of the argument derive their point of view more
of less from their prevailing world view, pragmatist accept one view,
idealist the other. It is difficult and dangerous to simplify an issue of
such magnitude thusly but this explanation of the opposing camps has some
merit.
Governments exist either de jure or de facto. De jure
is Latin for "of law" or in this case a government based upon law. De
facto means "in fact", or a government that exists in point of fact
regardless of the law that gave it birth.
To the pragmatist discussions surrounding government de jure versus
de facto government as this relates to the US federal government
are moot.
The pragmatist says "the federal government exists, it has power, it must be
dealt with and if change is desired it must be accomplished within the
system that this de facto government has established". There is
much truth in this statement, the federal government does exists, it does
rule, make laws of its own, and is in fact accepted by the majority of the
people over which it rules ( a condition reached via apathy). It is unlikely
that even if arguments of illegitimacy were proven correct that the de
facto government would simply say "gosh, you caught us, we are wrong;
here is your county back".
Pragmatists come in all flavors.
Those on the left could care less about the history or nature of the current
government. They are only concerned with using the power of the federal
government as a tool to advance their progressive and socialist agenda.
Neo-conservatives could certainly care less that our current system may
in fact not be based a government de jure. It was their heroes that
stuck the death blows to the old government. Just like the liberals the
neo-conservatives are much more concerned with the utilization for the power
of the federal government to spread their own forms of socialism and to
advance their view of empire and "democracy" around the world.
Many singly scope issue groups are unconcerned with the legality and
legitimacy of the current system. The NRA fights to protect gun rights from
a government that was granted no power to regulate gun ownership. Pro-life
groups fight to reverse federal court decisions permitting the murder of the
unborn while ignoring the fact that the federal government has never had the
legal right to dictate to states such matters. The list could go on. The
point is many well-meaning and very good people spend a significant portion
of their lives fighting battles against an illegitimate foe.
I mentioned in the beginning that the entire discussion of de jure
versus de facto is complicated and very dangerous. It is dangerous
because the mere mention and explanation of how these terms directly relate
to the government of the United States is likely to mark the speaker as a
nut in the mind of the uninitiated. I know this; it took me some time to
open up to the possibility, to read history with an open mind, and
inquisitive spirit and a desire to see things as they really are and how
they really ought to be. For years I ignored the arguments. The simple fact
is that many folks out there understand parts of this argument but many
misconstrue the facts. The Internet is filled with wild conspiracy theories
proclaiming that America is under British Admiralty Law, that the Vatican
tricked the South into seceding and a million other such nonsensical ideas.
The people that profess these beliefs throw terms like Common law, de
jure and de facto around in their arguments. It gives the
words and anyone that utters them a bad name.
Here are the facts for you to consider. (most of this we all know so I will
not insult you with deep explanations)
1.The Thirteen colonies collectively
declared their independence from the Crown in July 1776 (Virginia
actually declared her independence in earlier that year)
...That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish
Commerce, and to do all other Acts and Things which Independent States may of right do.
Thus becoming de facto sovereign nations. They were still outside of the law and in open rebellion but they were the de facto powers in their respective territories.
2. The Thirteen Colonies were granted individual independence from Britain in 1783
Article 1 His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states, that he treats with them as such, and for himself, his heirs, and successors, relinquishes all claims to the government, propriety, and territorial rights of the same and every part thereof.
Thus the Colonies became independent sovereign nations de jure.
3. The United States of America was born in 1781 with the Articles of Confederation via the consent of the independent states. (Independent States were born July 4, 1776, not the United States)
This was a government de jure. The States remained sovereign nation-state de jure under the Articles.
It must be noted that the Articles contained the words "perpetual union", a notion completely ignored in 1787 and absent from the Constitution of 1789
4. February of 1787 a convention was called to amend the Articles. Instead the convention set about crafting a new government. Many criticized the convention for not adhering to their charter and for operating outside of the law. In fact, the convention established by itself new rules by which the states might abolish the government of the Confederation and establish a new government.
5. This is exactly what happened in 1789. The convention, led by the likes of Madison and his "Virginia Plan" constructed a new government and devised a plan by which the new government might be born if only nine states accepted it. The Confederation died officially on July 2 1789 with twelve of the thirteen states joining the new Union (Rhode Island remained a free and independent nation for a year after the death of the Confederation).
Many people "hitch their horse" to this event and proclaim that indeed this is the point that the United States government departed from being of law and embarked upon a course of de facto existence. If in fact this change were forced upon the states, or conducted in dishonest means their point would be valid.
The Union formed by thirteen sovereign states in 1789 was no less a contract than the Articles of Confederation had been. In contract law the provisions that bind each party are the understandings each party had when they entered into the contract. It is always amazing to me that rational people accept this notion is civil courts over issues relating to real estate and other matters but are unwilling to accept it when it comes to the Constitution. Imagine if the contract that you signed for your mortgage was described as a living document. Sure it says you are supposed to pay your mortgage by the 15th of each month but that was signed 20 years ago, times change and perceptions change as well. Just ponder that for a moment. It is hard to imagine that a judge would rule that your contract with the mortgage company meant anything other than the exact same thing it meant the day you signed it. Contracts may be revised with consent, but they do not live. The Constitution is not a living document. (I do digress)
So we have established that the states were independent prior to the establishment of the Union and that they had previously abolished a form of government that no longer served the goals of the contract of consent. There were illegalities surrounding the dissolution of the Confederation but a higher principle was at work, which is the right of the governed to choose their form of government and the right of the States to exercise their legitimate sovereignty.
The government of the Union was therefore de facto but also de jure (by relying on Common Law principles) based upon the natural rights of man and the sovereign rights of the states for its existence.
Now to the part that creates difficulty for many readers.
(Note: My Southern bias is not something I attempt to hide. That would be intellectually dishonest. However, I believe, I can suppress my emotional attachment to my homeland and the wrongs and hardships visited upon her in order to articulate a few points of fact. Many turn away when we speak ill of Lincoln. They believe folks that attack the man and his actions must wish to re-fight the war or that we long for lazy days on the front porch sipping mint juleps while happy slaves sing ditties as they work our land. This is a weak straw-man argument. It is a baseless attack that only serves to ignore the sound arguments against the fundamental changes to the Republic - in fact the complete destruction of the Republic - carried out by Lincoln.)
Here are the facts that many will not hear, facts that are important to understand if ever we are to fundamentally change what is wrong
The Union survived and worked from 1798 until 1861. To be certain there were troubles but compromise saved the day at each point of contention. The New England states considered secession in the early 1800's, South Carolina later but these concerns were addressed well enough to maintain Union.
Two principles came directly to the fore in 1861.
One, did the member states of the Union have the right to leave the Union? Since the Constitution contained no verbiage relating to "perpetual union" as had the Articles of Confederation (and if it had those words certainly did not prevent secession in 1788-89) This question is certainly not a Constitutional question, the Constitution is silent on the issue.
Second, did the Union itself have the authority to coerce a State into remaining in the Union? The contact that created the Union, The Constitution, clearly specified what powers were available to the Federal government. Like a contract there exists no legal room for legitimately assuming rights and privileges not granted by the agreement.
President Buchanan stated in a speech before Congress in 1860 that:
The question fairly stated is, Has the Constitution delegated to Congress the power to coerce a State into submission which is attempting to withdraw or has actually withdrawn from the Confederacy? If answered in the affirmative, it must be on the principle that the power has been conferred upon Congress to declare and to make war against a State. After much serious reflection I have arrived at the conclusion that no such power has been delegated to Congress or to any other department of the Federal Government. It is manifest upon an inspection of the Constitution that this is not among the specific and enumerated powers granted to Congress, and it is equally apparent that its exercise is not " necessary and proper for carrying into execution " any one of these powers. So far from this power having been delegated to Congress, it was expressly refused by the Convention which framed the Constitution.
James Madison stated in 1787 when asked about the use of force against a State by the government he was proposing that:
The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound
This act of war was commenced without the consent of Congress by the way, an ominous precedent followed by others. Of course there was also the little matter of the "Patriot Act" of the day executed via a suspension of habeas corpus and the imprisonment of thousands of dissenters in the north as well as a total disregard for the 9th and 10th amendments and Article IV section 3 of The Constitution (just where did West Virginia come from).
Of course all of these acts were performed after the Union government ceased to be a government of law. The debacle over and enforcement of the 14th Amendment was the icing on the cake and the summation and coronation of a new government. A government not based upon law or even the consent of those governed but upon the will of the government itself to retain power.
(If you doubt my assertion that the government birthed by Lincoln and his crusade to save the Union at all cost - even the cost of The Constitution itself - was not a government by consent of the governed consider that the eleven states that comprised the Confederacy were militarily occupied and ruled and essentially forced to accept surrender terms to return to the Union - and thus partly end military occupation. Consent at gun point is not consent. Consider that the legislature in Maryland was arrested in 1861 to prevent the exercise of the sovereign right of that state to decide its own course in the War. The territories of Arizona, New Mexico and Oklahoma were also occupied and punished for their support of the Confederacy. It is impossible to read the history of Reconstruction and come away with any view other than the South was forced to accept Union terms and government. The day that Lincoln decided to utilize force to coerce southern states the Federal government forever lost all claim to ruling by consent.)
Nothing that has occurred since, no action of or by the Federal government has legitimacy under law. The government itself exists outside of law. It is chartered by a "living Constitution" that may be molded and bent by the wind and the will of men in robes. It terms itself a democracy even though Article IV Section 4 clearly states that the compact was created as a Republic. It is a de facto government, it exists, it has power and it will use it if you do not pay you tribute but it is not legitimate.
What then am I proposing? I am not saying that we ought to declare the leviathan illegitimate and without sway or hold over us. This would be folly. Those that refuse to pay taxes know full well the power and ferociousness of the federal government. I am not saying we ought to resist the power of the de facto government simply because it lacks legitimate legal authority. No matter the circumstance that contrived in history to bring together the ingredients that comprise the current system it remains the only government around, legitimate or not. We are duty bound to obey it so long as by doing so we do not disobey a higher law.
I merely point this out so that we understand what we are fighting for. When we proclaim that we desire a return to Constitutional, Republican form of government we mean just that. We desire a government that is held accountable to the contract that was signed in 1789, and defined exactly as it was agreed upon at the time of the signing.
The Federal government has proven its proclivity to spill blood to gain and retain power; the bulk of the citizenry does not even understand the legitimate historical issues at hand. These are our enemies and obstacles.
We will succeed because we have right on our side. We are on the side of law; we are aligned with God and his principles. We will use the legitimate sovereignty of my homeland in South Carolina to bring the federal government to heel and force it to recognize the Constitutional limits to its power, at least as applied to us.
Ours is a noble cause. We are putting action to ideas. Our actions will not only secure liberty for our children but they will also serve as a beacon of hope and inspiration for liberty loving people across the land and around the world.
