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Secessionist No. 6
Were the States Sovereign Nations? (see also Secessionist No. 16, a follow-up to this essay)
by Brian McCandliss
*rehosted here with the express permission of Mr. McCandliss,
originally posted on
Lew
Rockwell.com
A defining but so far unasked question regarding the Civil War is the
political status of the states: specifically, was the "United States of America"
indeed, as our popular Pledge of Allegiance claims, "one nation, indivisible?"
Or was it, rather, a union of sovereign nations, bound only to each other by
mere treaty, as with any other treaty such as the current United Nations? (As
a point of fact, the term "union" is the only term used in the text of the
Constitution to refer to the United States, while the word "nation" never
appears a single time).
This question seems to be the proverbial "elephant in the room" of American law
and history, for its answer is key in defining a state's right of secession:
this question marks the difference between, for example, Boston seceding from
Massachusetts, and Spain seceding from the United Nations. While in the first
instance, few would question the legal right of state officials to use force in
preventing local urban inhabitants from seceding with a state's city, such an
exercise against a sovereign nation in the latter example would be (hopefully)
viewed as nothing short of ruthless imperialism equivalent to that of Saddam
Hussein, Adolph Hitler or Genghis Khan.
As such, similar implications accrue to United States President Abraham Lincoln
from this question, in appraising him as either an upholder of law or a
dictator, regarding his particular instance in history of using military force.
If on the one hand, the states were held by law irrevocably to the Union,
then Lincoln would have simply been performing his sworn duty as necessary under
extreme conditions, and his defenders might have firm ground in excusing his
having "bent a few rules" to get the job done.
If, however, the states were indeed separate nations, then this would define
Lincoln as both the ultimate traitor, and most ruthless imperialist of his time,
via breaching his oaths to defend the existing order of a self-defined republic
of separate nations in order to overturn it in favor of what fits the official
definition of an "empire;" likewise, his defenders and supporters would likewise
classify as both similarly ruthless power-seekers, and what Lenin termed "useful
idiots."
To resolve this dichotomy, we must examine the relevant facts:
Lincoln claimed in his famous First Inaugural Address that "no State upon its
own mere motion can lawfully get out of the Union." He could only have been
referring to "the Union" as set forth in the Constitution; for, prior to this,
there can be no disputing the fact that the states were free and sovereign
nations as established in the Articles of Confederation, which under Article
II states that:
"Each state retains its sovereignty, freedom, and independence, and every power,
jurisdiction, and right, which is not by this Confederation expressly delegated
to the United States, in Congress assembled."
Here the term "delegated" requires contextual definition, meaning literally "to
make lesser law;" when powers are "delegated," they are merely passed down a
chain-of-command to a subordinate agent by a superior principal authority, in
order to provide that agent with representative "proxy" authority to carry out
respective duties. In no way may does this delegated authority ever supersede or
negate that of the delegating body any more than a company employee who is
delegated authority by his manager, can give orders to the firm's owner, or
override the dictates of such. Rather, such a representative can be overridden
at any time at the behest of the superior or discharged entirely.
As such, a "delegation" clause cannot be seen as a compromise or surrender of
sovereignty in any way.
Thus, the force and effectiveness of this sovereignty which was thus "retained"
from the Declaration of Independence, was equivalent to that of any other
nation; this was made clear in the Declaration, via the statement:
"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 do all other acts and things which independent states may of right
do" (emphasis in original).
(Note that the term "state" used here in the Declaration, is clearly used
synonymously with the term "nation" for the purposes of this document; as such,
the United States had no more claim in binding South Carolina or Virginia, than
it had in binding England or France, and the term "United States" literally
meant "United Nations.")
Lincoln and his defenders, then, must believe that the states somehow
"surrendered" their status as sovereign nations, in the act of ratifying the
Constitution (or, as Lincoln added in his First Inaugural, "the union matured").
However this is negated by the 10th Amendment specification that powers were
merely delegated, i.e.,
"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" (emphasis added).
In this context, therefore, powers were delegated to the federal government via
the Constitution by the states ratifying it, not out in the interest of any sort
of collectivism, but merely for the purposes of practical harmony in
co-existence with both union and non-union nations solely for advancing the
individual benefit of the respective delegating state.
Meanwhile, the 9th amendment likewise states that:
"The enumeration in the Constitution, of certain rights, shall not be construed
to deny or disparage others retained by the people."
Since the term "others" as used here, clearly refers to rights not enumerated in
the text of the Constitution, then it thus implicitly preserves those rights
enumerated via prior documents such as the Articles of Confederation, which
specifically retains the "sovereignty, freedom and independence" of every state
which the Constitution does not exclude anywhere (but rather preserves, since
states would have to retain their sovereign powers in order to delegate them).
Here the term "the people" must likewise be defined, with this term referring to
the same "people" referenced initially in the Constitution's preamble and
which, as has been well-established elsewhere, did not refer to all persons in
the United States collectively; rather, the term "the people" refers solely to
the citizens of the states individually and respectively, speaking through their
elected officials and even then, only those states ratifying the Constitution
at the time.
This is further implied in the Constitution's Article IV, Section 2, statement
that:
"The citizens of each state shall be entitled to all privileges and immunities
of citizens in the several states."
Clearly, separate reference to "citizens of each state," as opposed to "citizens
in the several states," clarifies that citizenship was strictly state-specific
and derived, and not union-related in any way whatsoever: in fact, the term
"Citizen of the United States" was never known prior to the passage of the 14th
amendment following the Civil War being a pure post-Lincoln invention , and
would have no more meaning prior to that war, than "Citizen of the United
Nations" in today's context to imply similar supremacy.
As such, it is clear that the Ninth Amendment implicitly reserved the right of
every state, to the same sovereignty, freedom and independence which existed
previously, i.e., no less than that of any other nation in the world.
Finally, even when admitting all of the above, anti-secessionists almost
unanimously claim their proverbial "trump-card" in the Constitution's so-called
"Supremacy clause" of U.S. Constitution Article VI, which states that:
"This Constitution
shall be the Supreme Law of the Land, and the judges in
every state shall be bound thereby, anything in the laws or constitutions of any
state notwithstanding."
The level of absurdity in declaring any sort of logical victory, based on such
an obviously flawed argument is astounding; for here the explicit language
regarding this "Supreme Law" clearly, specifically and unmistakably states in
plain English, no less that this "law" is binding on "the judges in every
state " and only the judges.
In contrast, the remainder of the Article omits all other officials from any
such bond, using very different language in describing its relation to them; to
wit:
"The Senators and Representatives before mentioned, and the members of the
several state legislatures, and all executive and judicial officers, both of the
United States and of the several states, shall be bound by oath or affirmation,
to support this Constitution; but no religious test shall ever be required as a
qualification to any office or public trust under the United States."
Any person literate in the English language not to mention the language of law
and logic should be able to recognize that such explicitly omissive and
separate treatment, translates to the fact that the Constitution does not claim
any legal binding effect whatsoever, on anyone but state judges; rather, such
language merely implies recognition of the Constitution by officials as a mere
mutual good-faith agreement. It is simply absurd, after all, to claim that the
phrase "state judges shall be bound by law, while all others shall be bound
merely by a promise or agreement to support the law," somehow translates to the
notion that "all officials are bound by law " particularly when the final
clause specifically precludes any religious test from implying the term "oath or
affirmation" as binding via any common "higher law," such as an oath
specifically to God, Allah or the Buddha even allowing religions for which
oath or affirmation has no higher context.
As such, the implication here is that the Constitution is a mere treaty between
separate and sovereign nation-states a treaty which state officials simply
agree to "support," as opposed to being bound to obey such as a law, under
penalty of such. Rather, this treaty is written as merely a bi-lateral
agreement, with each side bound solely by its own conscience and good reputation
and as such, may be thus dispensed with entirely, if either side believes a
breach of faith has been committed by the other.
To claim otherwise, i.e., that every state committed itself to the supreme and
final binding arbitration (and mercy) of the Federal government in settling
disputes under force of law wielded by such would not only be nonsensical
for the purposes of protecting the states from possible abuses by this same
Federal government, but moreover is nowhere expressed or even implied in the
Constitution or any other document.
With the Constitution thus expressing nothing contrary to individual states
retaining their status as sovereign nations, Lincoln found it thus necessary to
invent such, claiming in his First Inaugural Address that "Perpetuity is
implied, if not expressed, in the fundamental law of all national governments."
Here Lincoln commits a pure logical fallacy if not an outright deception via
switching context and assuming, outright, that the Constitution defines a
"national government." This assumption is not only supported nowhere in the
Constitution or prior documents, but in fact his statement "implied if not
expressed" specifically contradicts Ninth and Tenth Amendment reservations that
all un-expressed rights and powers including those of state sovereignty,
freedom and independence were retained by the states; even expressed powers of
the United States were likewise mere delegations of state authority thus
implying their status as separate sovereign nations.
In conclusion, I cannot imagine why anyone would imagine that separate nations,
would knowingly and willingly surrender their individual sovereignty
particularly, as in the case of the United States, after their having just won
it via bloodshed from centralized and consolidated tyranny firsthand, against
all believed likelihood of success; perhaps such persons believe Lincoln's claim
which he makes in his First Inaugural Address once again that "All the vital
rights of minorities and of individuals are so plainly assured to them by
affirmations and negations, guaranties [sic] and prohibitions, in the
Constitution that controversies never arise concerning them".
In like manner, I cannot answer how any rational or thinking person can be so
naive, as to actually believe that any laws or order can be made so perfect as
to preclude any incidence whatsoever of government breaches or excesses to the
extent of such "never arising" so that the supreme protection of national
sovereignty was no longer considered necessary or even desirable to the people
of any state in the Union. Rather, I can only prove that such supreme national
sovereignty was established and recognized by law for each and every state and
that no law or document that surrendered or compromised it in any manner
whatsoever, was ever passed or ratified by them.
April 20, 2004
by
Brian McCandliss
Brian McCandliss
[send him mail] is a business
and economics graduate of Liberty University in Lynchburg, VA, a law student,
and a businessman in Detroit, Michigan
Originally posted on
lewrockwell.com, included in the
collection of Secessionist
Papers with
the express consent and support of the author
North American * Secession and Independence Movements
*Hawaii and Puerto Rico are obviously not part of North America, no offense intended
Active Secession Movements Around the World
One Nation Indivisible? A Study of Secession and the Constitution