How Libertarians Ought To Think About The U.S. Civil War

Reason Papers ^ | Spring 2006 | TIMOTHY SANDEFUR

[Delacon]

How Libertarians Ought To Think About The U.S. Civil War

By Timothy Sandefur

[Reason Papers vol. 28, pp. 61-83, Spring 2006]

I. Introduction

For decades, outspoken libertarians have seen the Civil War not only as a

historical calamity, but as a political calamity as well. According to many libertarians,

the Union victory in the Civil War, and the presidency of Abraham Lincoln in general,

represented a betrayal of American Constitution and of the fundamental principles of

American political philosophy.

This interpretation rests on two major arguments as well as a variety of more

minor concerns. The more minor concerns include specific critiques of the policies of the

Lincoln Administration, or of the conduct of the War by Union forces. For example,

many libertarians condemn the Union for instituting a military draft, or for suspending

the writ of habeas corpus. There are many of these specific criticisms, which deserve

detailed discussion which cannot be provided here.1 Suffice to say that some of these

criticisms are well-founded; indeed, libertarians deplore war precisely because it tends to

give rise to such evils.

Understanding the Civil War as a matter of political philosophy, however,

requires a systematic, two-step analysis: first, does a state have the legal authority under

the United States Constitution, to secede unilaterally? If the answer to this question is

yes, then the analysis is at an end: if states have the right to secede, the Union was in the

wrong to put down the Confederacy. If, however, the answer is no, then we must proceed

to a second step: even illegal acts, like the American Revolution, are justified by the right

1 For example, it ought to be noted that the Confederacy instituted a military draft as well, and did so before

the Union did. J. McPherson, Battle Cry of Freedom (New York: Ballantine, 1988) p. 427.

of revolution, so even if the Constitution does prohibit secession, the people of the

southern states had the right to rebel against the Union, if their act was a legitimate act of

revolution. It is essential to keep in mind the distinction between secession and

revolution. As Lincoln wrote, “It might seem, at first thought, to be of little difference

whether the present movement at the South be called ‘secession’ or ‘rebellion.’ The

movers, however, well understand the [*62] difference.”2 Was, then, the Confederate

rebellion a legitimate act of revolution?

The prevailing libertarian answers to these questions are, first, that states have the

constitutional right to secede, and that Abraham Lincoln violated the Constitution by

leading the nation into war against the seceding states. This argument is based on the

“compact theory” of the Constitution. Second, the prevailing argument holds that the

rebellion represented a legitimate act of revolution. This argument is based on the

concept of “self-determination.”3 These premises, however, are invalid, as are the

prevailing libertarian conclusions. In fact, states have no constitutional authority to

secede from the union unilaterally; nor were southern states engaged in a legitimate act of

revolution, because they initiated force, rather than acting in defense of individual rights.

II. Do States Have The Legal Right to Secede?

A. Three Interpretations of Union

2 R. Basler, ed., Collected Works of Abraham Lincoln 8 vols. (New Brunswick: Rutgers University Press,

1953) 4:432.

3 See, e.g., J. Livingston, “A Moral Accounting of The Union And The Confederacy.” Journal of

Libertarian Studies. 16:2 pp. 57-101 (2002).

There are at least three ways of looking at the nature of the federal union under

the Constitution. First, the “compact theory” of the Constitution holds that it is much like

a treaty between essentially independent states. This theory found its first major

expression in the Kentucky and Virginia Resolutions, drafted by Thomas Jefferson and

James Madison, respectively, as a protest to the Alien and Sedition laws in 1798.4 In the

1830s, South Carolina Senator John C. Calhoun based his theory of nullification on these

resolutions—despite Madison’s repudiation of nullification—and thereby laid the

intellectual foundation for secession thirty years later.5 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. Under the compact theory, the federal union

contains no inherent element of sovereignty—it is a league of sovereign states. In

Calhoun’s view, [*63] the Constitution “is the government of States united in a political

union, in contradistinction to a government of individuals socially united…the

government of a community of States, and not the government of a single State or

nation.”6

Opposed to the compact theory are two theories that we may call the “weak

union” and the “strong union” views. According to these views, the federal Constitution

is not a treaty, but a law, and the federal union contains at least some element of

4 D. Mayer, The Constitutional Thought of Thomas Jefferson. (Charlottesville: University Press of Virginia,

1994) p. 201.

5 D. McCoy, The Last of The Fathers: James Madison And The Republican Legacy (New York: Cambridge

University Press, 1989) pp. 132-62; L. Banning, The Sacred Fire of Liberty. (Ithaca: Cornell University

Press, 1995) pp. 387-95.

6 C. Post, ed., A Disquisition on Government And Selections from The Discourses by John C. Calhoun.

(Indianapolis: Bobbs-Merrill, 1953) p. 86.

sovereignty; the federal union is not seen as a league of sovereigns, but as the government

of a single State or nation.

The strong-union view, most famously espoused by Daniel Webster, and later

adopted by Abraham Lincoln, Charles Sumner, and even Lysander Spooner,7 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. This view has much to commend it; the Declaration of Independence, for

instance, was issued in the name of the “thirteen united States of America,” who, as “one

people” were breaking their former political bonds, and declaring that “these united

colonies are free and independent states.” It then goes on to describe what “free and

independent states may of right do”—things like carrying on foreign policy—none of

which were actually done by the states. In fact, at the 1787 Philadelphia Convention,

Delegate Rufus King 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.8

7 L. Spooner, The Unconstitutionality of Slavery (Boston: Bela Marsh, 1860) pp. 56, 78-79.

8 J. Elliott, ed., Debates in the Several State Conventions on the Adoption of the Federal Constitution. 5

vols. (Washington: Elliott, 1836) 5:212-213. This argument formed a central point in Justice Sutherland’s

interpretation of federal foreign policy power in United States v. Curtiss-Wright Export Corp., 299 U.S.

304 (1936). See J. Eastman and H. V. Jaffa, “Understanding Justice Sutherland As He Understood

Himself,” University of Chicago Law Review 63:1347. 1352 n. 17 (1996).

[*64] James Wilson (a signer of the Declaration) agreed, saying that he “could not

admit the doctrine that when the colonies became independent of Great Britain, they

became independent also of each other. He read the Declaration of Independence,

observing thereon, that the United Colonies were declared free and independent states,

and inferring, that they were independent, not individually, but unitedly, and that they

were confederated, as they were independent states.”9 Consequently, the Constitution of

1787 did not purport to create the union, only to make it “more perfect.” Jefferson and

Madison called the Declaration of Independence “the fundamental act of union of these

States,”10 and even at the South Carolina Ratification Convention, when one delegate

claimed that “[t]he [1783] treaty of peace expressly agreed to acknowledge us as free,

sovereign, and independent states...[b]ut this new Constitution at once swept those

privileges away, being sovereign over all,” Charles Cotesworth Pinckney answered that

“[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.”11

There are ambiguities, however, which undermine the strong union view. Section

two of the Articles of Confederation, for example, did acknowledge the separate

sovereignty of the American states: “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.” This

9 Elliott (1836) 5:213.

10 M. Peterson, ed., Jefferson: Writings (New York: Library of America, 1984) p. 479.

11 Elliott (1836) 4:287, 301.

seems inconsistent with the view that the union was created by the Declaration.

And the fact that the Continental Congress carried out foreign policy only shows that the

federative power,12 which is only part of the national [*65] sovereignty, was vested in the

national government. The nature of federal sovereignty at the time of the American

founding was at least ambiguous13—surely one reason that the union needed to be made

more perfect eleven years later.

The “weak-union” view was most famously espoused by James Madison.

According to it, the Articles of Confederation did indeed acknowledge the separate

sovereignty of the American states—and that was exactly the problem. Alexander

Hamilton put it well in a sentence which is the theme of the entire Federalist: “The great

and radical vice in the construction of the existing Confederation is in the principle of

LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or

COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of

which they consist.”14 The new Constitution would solve this problem by creating a new

kind of government—one of “divided sovereignty,” 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—thus it

12 In his Second Treatise, Locke explains that the “federative power” is that part of the executive power

which deals with foreign relations. P. Laslett, ed., John Locke’s Two Treatises of Government (Oxford:

Oxford University Press, rev ed. 1963) pp. 409-412.

13 Justice Chase pointed out some ambiguities in his opinion in Ware v. Hylton, 3 U.S. (3 Dall.) 199, 224-

225, 231-232 (1796).

14 C. Rossiter, ed., The Federalist (New York: Signet, 1961) p. 108; see also J. Rakove, ed., Madison:

Writings (New York: Library of America, 1999) p. 69.

would “be then a government established by the thirteen States of America, not through

the intervention of the Legislatures, but by the people at large...[a] distinction...[which] is

very material.”15 Thus, contrary to the strong-union view, the sovereignty of the states

did not depend on the creation of the federal authority; they were two wholly independent

systems, in which the federal power was supreme within its limited sphere—and

nonexistent outside of that sphere. One might analogize divided sovereignty to a

homeowner who receives separate bills from the electric company and the gas company.

An American citizen is separately a citizen of the state and of the federal union, and

neither of these types of citizenship is superior to or inferior to the other.

[*66] Under either the weak-union view or the strong-union view, states have no

unilateral power to secede. Thus, in addressing whether the Confederacy had the

constitutional authority to secede, it is unnecessary to resolve the question of whether the

union was created by the Declaration of Independence or not, because ratification

resolved the fundamental point: the federal union was an agreement between the people,

not the states. The Constitution’s fundamental premise of divided sovereignty—

respected by both the weak-union and strong-union views, means that the people of

America are bound together as one people for certain purposes—and therefore a state

may not unilaterally secede.

B. What Divided Sovereignty Means16

15 B. Bailyn, ed., Debate On The Constitution (New York: Library of America, 1993) 2:619.

16 Obviously, in the following, I refer only to the Constitution as it existed before the Fourteenth

Amendment, which changed the nature of state and federal sovereignty.

Because the sovereignty of a state is distinct from that of the union, a state can no

more absolve its people of their allegiance to the federal government than the gas

company can absolve a customer from paying her electric bill. The people, who adopted

the Constitution, may decide to allow the people of a state to leave the union—through

Congressional action (according to the weak-union view), or by adopting a Constitutional

Amendment (according to the strong-union view). But unilateral secession is

unconstitutional.

“In the compound republic of America,” said Madison, “the power surrendered by

the people is first divided between two distinct governments....”17 But “[t]he main

[fallacy] of nullification,” he later explained,

is the assumption that sovereignty is a unit, at once indivisible and

unalienable; that the states therefore individually retain it entire as they

originally held it, and, consequently, that no portion of it can belong to the

U.S.... [W]here does the sovereignty which makes such a Constitution

reside[?] It resides not in a single state but in the people of each of the

several states, uniting with those of the others in the express & solemn

compact which forms the Constitution. To the extent of that compact or

Constitution, therefore, the people of the several States must be a

sovereign as they are a united people.... That a sovereignty should have

even been denied to the States in their united character, may well excite

wonder, when it is recollected that the Constitution which now unites

them, was announced by the convention which formed it, as dividing

sovereignty between the Union & the States; that it was presented under

that view, by contemporary expositions recommending it to the ratifying

[*66] authorities; that it has proved to have been so understood by the

language which has been applied to it constantly….18

Divided sovereignty (also called “dual sovereignty”), was the principal innovation

of the Constitution. While the strong-union view saw ratification as simply an

overhauling of the union, to the weak-union view, ratification reformed the sovereignty

17 Rossiter (1961) p. 323.

18 M. Meyers, ed., The Mind of The Founder: Sources of the Political Thought of James Madison (Hanover:

University Press of New England, rev. ed. 1981) pp. 436-38.

of the states as well as of the federal government. But according to both views, federal

sovereignty is independent of the sovereignty of the states.

Even Anti-Federalists acknowledged that ratifying the Constitution meant

redefining American sovereignty. “Cincinnatus,” for instance, complained that “[s]uch is

the anxiety manifested by the framers of the proposed constitution, for the utter extinction

of the state sovereignties, that they were not content with taking from them every

attribute of sovereignty, but would not leave them even the name.—Therefore, in the very

commencement they prescribe this remarkable declaration—We the People of the United

States.”19 The “Federal Farmer” wrote that “when the people [of each state] shall adopt

the proposed…it will be adopted not by the people of New Hampshire, Massachusetts,

&c., but by the people of the United States….”20 Robert Yates opposed ratification of the

Constitution precisely on these grounds: he admitted that “if it is ratified, [it] will not be a

compact entered into by the States, in their corporate capacities, but an agreement of the

people of the United States as one great body politic.... It is to be observed, it is not a

union of states or bodies corporate; had this been the case the existence of the state

governments might have been secured. But it is a union of the people of the United

States considered as one body, who are to ratify this constitution, if it is adopted.”21

Indeed, at the Virginia Ratification Convention, Patrick Henry challenged James Madison

on this point: “Who authorized [the Constitutional Convention] to speak the language of

We the people, instead of We, the States? States are the characteristics, and the soul of a

confederation.”22 Madison replied that the authority of the Articles of [*67]

19 Bailyn (1993), 1:118-119.

20 Bailyn (1993) 1: 275

21 P. Kurland and R. Lerner, eds., The Founders’ Constitution (Indianapolis: Liberty Fund 1987) 4:237.

22 Bailyn (1993) 2:596-597.

Confederation had been “derived from the dependent derivative authority of the

legislatures of the states; whereas this [Constitution] is derived from the superior power

of the people.”23 The Constitution did not consolidate the states entirely, but “[s]hould all

the States adopt it, it will be then a government established by the thirteen States of

America, not through the intervention of the Legislatures, but by the people at large.”24

Opponents of the Constitution, therefore, were well aware that the Constitution

would create, not a league of essentially independent sovereignties, but a new nation,

retaining its own sovereignty for certain limited purposes. The Federalists explicitly

defended this fact: for most purposes, they explained, the people of the states would find

their state citizenship unchanged, but for a specified list of other purposes, the whole

people of America would now agree, as a single political unit, to invest the union with

sovereignty directly, not through any intermediary step of state authorities. The federal

and the state sovereignty travel, as it were, on parallel rails: state sovereignty connecting

the sovereignty of the people of a state to their state capitol; federal sovereignty joining

all the people through its national network, to arrive at Washington, D.C. James Wilson,

signer of both the Constitution and the Declaration, told the Pennsylvania Ratification

Convention that

the sovereignty resides in the people, they have not parted with it; they

have only dispensed such portions of power as were conceived necessary

for the public welfare…. In order to recognize this leading principle, the

proposed system sets out with a declaration, that its existence depends

upon the supreme authority of the people alone…. When the principle is

once settled, that the people are the source of authority, the consequence

23 Bailyn (1993) 2:619.

24 Id.

is, that they may take from the subordinate governments with which they

have hitherto trusted them, and place those powers in the general

government, if it is thought that they will be productive of more good…. I

have no idea, that a safe system of power, in the government, sufficient to

manage the general interest of the United States, could be drawn from any

other source, or rested in any other authority than that of the people at

large, and I consider this authority as the rock on which this structure will

stand.25

[*68] So while the states would, for the most part, retain their sovereignty,

ratification meant that the whole People of the United States would now agree to vest

their inchoate power to engage in, for example, foreign policy, exclusively in the federal

government, which would be supreme for the limited, enumerated purposes of the federal

union; otherwise, wrote Hamilton, the Constitution would “be a mere treaty, dependent

on the good faith of the parties, and not a government, which is only another word for

POLITICAL POWER AND SUPREMACY.”26 For Hamilton, the reason for a new

Constitution was precisely to end the notion that the union was a league of sovereigns:

one of the “infirmities” of the Articles of Confederation, he wrote, was

that it never had a ratification by the PEOPLE. Resting on no better

foundation than the consent of the several legislatures, it has been exposed

to frequent and intricate questions concerning the validity of its powers,

and has, in some instances, given birth to the enormous doctrine of a right

of legislative repeal. Owing its ratification to the law of a State, it has been

contended that the same authority might repeal the law by which it was

ratified. However gross a heresy it may be to maintain that a party to a

compact has a right to revoke that compact, the doctrine itself has had

respectable advocates. The possibility of a question of this nature proves

the necessity of laying the foundations of our national government deeper

than in the mere sanction of delegated authority. The fabric of American

empire ought to rest on the solid basis of THE CONSENT OF THE

PEOPLE. The streams of national power ought to flow immediately from

that pure, original fountain of all legitimate authority.27

25 Bailyn (1993) 1:820-21.

26 Rossiter (1961) 204.

27 Rossiter (1961) 152.

One argument against the principle of divided sovereignty is that the Constitution was

adopted by the members of distinct states, rather than by a national referendum. But

Chief Justice John Marshall (who had been a delegate to the Virginia Ratification

Convention) answered that 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.28

This was not only the opinion of High Federalists like Marshall. As Madison explained

(long after his break with the Federalists), the Constitution was formed

by the people in each of the States, acting in their highest sovereign

capacity.... Being thus derived from the same source as the Constitutions

of the States, it...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.29

28 17 U.S. (4 Wheat.) 316, 403 (1819). See also Chisolm v. Georgia, 2 U.S. (2 Dall.) 419, 435 (1793) (“The

powers of the general Government…do for the most part (if not wholly) affect individuals, and not States:

They require no aid from any State authority. This is the great leading distinction between the old articles

of confederation, and the present constitution”); id. at 470 (Jay, C.J.) (“the people, in their collective and

national capacity, established the present Constitution”); Respublica v. Corbbet, 3 U.S. (3 Dall.) 467

(1798); Hylton v. United States, 3 U.S. (3 Dall.) 171, 178 (1796) (per Paterson, J.,); id. at 181 (per Iredell,

J.); Ware v. Hylton, 3 U.S. (3 Dall.) 199, 236 (1796) (per Chase, J.); Banks v. Greenleaf, 10 Va. 271, 277-

78 (1799) (“the general government derives its existence and power from the people, and not from the

states, yet each state government derives its powers from the people of that particular state. Their forms of

government are different, being derived from different sources; and their laws are different.”)

29 Rakove (1999), p. 843.

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 [*70] 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

As Justice Anthony Kennedy recently put it, “The Framers split the atom of sovereignty.

It was the genius of their idea that our citizens would have two political capacities, one

state and one federal, each protected from incursion by the other…with its own direct

relationship, its own privity, its own set of mutual rights and obligations to the people

who sustain it and are governed by it.... [T]he National Government, the mark of its

legitimacy, is that it owes its existence to the act of the whole people who created it.”32

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

30 Post (1953) p. 91.

31 M’Colloch v. Maryland, 17 U.S. (4 Wheat.) 316, 403-405 (1819).

32 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838-39 (1995).

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 United States Constitution was just that—a constitution [*71] 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

Some of those who defend the constitutionality of secession claim that it was

foreseen, and that several states ratified the constitution did so with explicit reservations

of the right to secede.36 This claim, however, is seriously exaggerated. The only state

which passed such a “reservation” while ratifying, and which later seceded, was Virginia.

That state’s “reservation” read: “The powers granted under the Constitution being

33 Basler (1953) 4:437.

34 A. Amar, “Of Sovereignty and Federalism,” Yale Law Journal 96:1425, 1462 n.162.

35 Rakove (1999) p. 853.

36 T. DiLorezno, The Real Lincoln : A New Look at Abraham Lincoln, His Agenda, and an Unnecessary

War (Roseville: Prima Publishing, 2002) p. 91.

derived from the People of the United States may be resumed by them whenever the same

shall be perverted to their injury or oppression.”37 These phrases nowhere mention any

right to unilateral secession, nor to any unconditional right to revolt for any reason the

state sees fit. Instead, the “reservation” is simply a restatement of the right to revolution,

which we will consider below. Moreover, it is made in the name, not of the people of

Virginia, but of “the People of the United States,” and it makes the unremarkable

assertion that they have the right to change their government.

It is also frequently argued that another set of Resolutions, the Virginia and

Kentucky Resolutions, reveal the true nature of the Constitution as a league of sovereign

states, and that Madison’s later repudiation of the compact theory was an instance of

intellectual dishonesty. The facts, as usual, are more complicated. Jefferson, whose

Kentucky Resolutions unequivocally endorsed the compact theory, sent a draft to

Madison for his review. Madison was somewhat startled by Jefferson’s argument, and he

replied, “Have you ever considered thoroughly the distinction between the power of the

State, & that of the Legislature, on questions relating to the federal pact[?] On the

supposition that the former is clearly the ultimate Judge of infractions, it does [*72] not

follow that the latter is the legitimate organ especially as a convention was the organ by

which the Compact was made.”38 Madison’s Virginia Resolutions were somewhat more

guarded, and, he insisted, never endorsed the compact theory of the Constitution.

Decades later, writing furiously to oppose Calhoun’s doctrine of nullification, Madison

explained, just as he had at the Philadelphia and Richmond conventions, that the

37 Emphasis added.

38 Rakove (1999) p. 392.

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 case, what Jefferson and Madison wrote in 1798, in a series of resolutions

adopted by two state legislatures, cannot change the nature of the federal Constitution as

adopted in 1787: it is a binding government of the whole people of the United States. No

state may unilaterally leave the union.

C. Other Constitutional Provisions Barring Unilateral Secession

We have seen that the nature of federal sovereignty under the Constitution makes

unilateral secession illegal. Since the Constitution is a [*73] law binding the People, and

39 Rakove (1999) pp. 842-843.

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.

Several other clauses of the Constitution are consistent with this view, and would

be inconsistent with any interpretation allowing a state to leave the union unilaterally.

The Constitution guarantees to every state a republican form of government (Art. IV § 4),

prohibits states from entering into any compact with other states without Congressional

permission (Art. I § 10), guarantees the privileges and immunities of citizens when they

travel interstate (Art. IV §2), prohibits states from entering into any “Treaty, Alliance, or

Confederation,” even with Congressional approval (Art. I § 10), preserves every state’s

right to two senators (Art. V), is the supreme law of the land (Art. VI § 2), and requires

state officeholders to take an oath to support the Constitution of the United States (Art.

VI § 3). These clauses are inconsistent with the theory that secession is a constitutional

prerogative of state government. Consider, for example, the republican guarantee clause:

if a state could unilaterally secede, then any group of criminals might declare themselves

the “rightful” government of a state, issue a proclamation of secession—and then leave

the federal government unable to enforce the guarantee. Likewise, if states could leave

the union at any time, it would make little sense to require state officials to take an oath

to support the United States Constitution, since their allegiance to the federal union

would depend wholly on whether their state decided to remain in the union or not.

One common argument is that the Tenth Amendment reserves to the states the

power to secede from the union. But this claim begs the question, in two ways. The

Amendment says that “[t]he 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.”40 First, since the Constitution does prohibit secession, that power cannot

be reserved to the states. And, second, the Amendment refers explicitly to “the people.”

To what “people” does this refer? Not to the people of each state separately, but to a

single people: that is, “We the People” who ratified the Constitution.41 [*74] Under the

compact theory, this clause would be surplusage, since no mere league of sovereigns has

the authority to reserve nondelegated powers directly to the people of separate

sovereignties, any more than the United Nations can “reserve” any rights to the people of

the United States.

III. Was The South Engaged In Revolution?

The fact that states have no Constitutional right to unilaterally secede does not

end the inquiry, because people retain the right of revolution regardless. If the

Confederacy represented a legitimate act of revolution, then the Union was still in the

wrong to put down the rebellion. Madison never denied that all people retain the right to

revolution. Nor did Abraham Lincoln. Even in his First Inaugural Address, Lincoln

40 Emphasis added.

41 Believers in the “strong-union” view would argue that this is the same “one people” who dissolved their

political bands with England. Also, according to one adherent of the strong-union view, one of the more

sophisticated manifestations of the pre-constitutional origin of the union is found in the fact that the

Constitution itself limits the degree to which the Constitution can be amended. No amendment, for

instance, was permitted to change the date of the Importation Clause, and no amendment can deprive a state

of its two senators. If the states had created the federal union, then these clauses would be selfcontradictory,

since there could be no higher sovereignty which could institute, let alone enforce, such a

restriction on the power to amend. “A sovereign is by definition a source and not a subject of law,” so a

compact between sovereigns can never be made unamendable. But, according to either the strong- or

weak-union views, since the whole people of the union created the Constitution only to make that union

more perfect, they could place limits on the degree to which the Constitution itself could be altered. H.V.

Jaffa, The Conditions of Freedom (Claremont: Claremont Institute Press, 2000 (1975)) pp. 161, 172.

acknowledged that “[i]f, by the mere force of numbers, a majority should deprive a

minority of any clearly written constitutional right, it might, in a moral point of view,

justify revolution—certainly would, if such right were a vital one. But such is not our

case.”42 Even though the Constitution is a compact between the whole people of the

United States, and thus is alterable by the whole people only, any individual or group

retains an inalienable right to fight against tyranny.

Many libertarians defend the Confederate states’ secession on the grounds that it

was engaged in a revolution consistent with the principles of the Declaration of

Independence. Writing in 1920, H.L. Mencken claimed that “The Union

soldiers…actually fought against self-determination; it was the Confederates who fought

for the right of their people to govern themselves.”43 More recently, Jeffrey Rogers

Hummel has written that “as a revolutionary right, the legitimacy of secession is

universal and unconditional. That at least is how the Declaration of Independence

reads.”44

The problem with this argument is that this is not how the Declaration of

Independence reads. In fact, the libertarian principles of [*75] revolution enunciated in

the Declaration do not justify the Confederacy’s acts at all.

According to libertarianism, as espoused by John Locke, Thomas Jefferson, and

others, the individual’s right to own himself puts him on a par with all other individuals

in a state of nature. Before government exists, each person has the equal right to run his

own life as every other person, and this includes the right to self-defense. Since selfdefense

is difficult in the state of nature, however, people agree to join a social compact

42 Basler (1953) 4:267.

43 H.L. Mencken, A Mencken Chrestomathy (New York: Vintage 1982 (1948)) p. 223.

44 J.R. Hummel, Emancipating Slaves, Enslaving Free Men (Peru, Ill.: Open Court, 1996) p. 351.

by delegating part of that right to the government, which is entrusted with the power to

protect their lives, liberties, and estates. But government has no authority to violate their

rights, because no individual in the state of nature has the right to violate another person’s

rights, and therefore cannot confer such a right to the government. “[T]he Legislat[ur]e,”

wrote Locke, “is not, nor can possibly be, absolutely Arbitrary over the Lives and

Fortunes of the People. For it being but the joynt power of every Member of the Society

given up to that Person or Assembly which is Legislator, it can be no more than those

persons had in a State of Nature before they enter’d into Society…. For no Body can

transfer to another more power than he has in himself; and no Body has an absolute

Arbitrary Power...[to] take away the Life or Property of another.”45 Thus, if those

appointed to govern “endeavour to take away and destroy the Property of the People, or

to reduce them to Slavery under Arbitrary Power…and…endeavour to grasp themselves,

or put into the hands of any other an Absolute Power over the Lives, Liberties, and

Estates of the People; By this breach of Trust they forfeit the Power, the People had put

into their hands, for quite contrary ends, and it devolves to the People, who have a Right

to resume their original Liberty….”46 The right to revolution, therefore, is an expression

of the right to self-defense.

The right to self-ownership allows individuals to agree to a social compact, and

the right of self-defense gives that compact its legitimacy. Any society which contradicts

these fundamental premises—such as a society based on inequality and slavery—is

therefore not a legitimate government; it is instead a criminal gang, and it cannot justify

its robbery or enslavement by claiming that the people voted for these things, because the

45 Laslett (1963) p. 402.

46 Laslett (1963) p. 461.

people no right to enslave others in the first place.47 Such a “government” lacks

legitimacy and may rightly be overthrown. As Lincoln summarized it, “no man is good

enough to govern another man, without that other’s consent. I [*76] say this is the

leading principle—the sheet anchor of American republicanism.”48

The Declaration of Independence enunciates these principles in what is almost a

syllogism: “all men are created equal... endowed by their Creator with certain unalienable

Rights... among these are Life, Liberty and the pursuit of Happiness... to secure these

rights, Governments are instituted among Men, deriving their just powers from the

consent of the governed... whenever any Form of Government becomes destructive of

these ends... it is their right, it is their duty, to throw off such Government....” This right

and duty, however, may only be exercised after “a long train of abuses and usurpations,

pursuing invariably the same Object evinces a design to reduce [the people] under

absolute Despotism.”

The Declaration of Independence, therefore, far from recognizing any

“unconditional” right of people to overthrow their government, places several important

limits on rebellion: it is justified only by a collective act of self-defense, and even then,

only after “a long train of abuses and usurpations.” And a rebellion which institutes a

new government based not on securing individual rights, but on violating them (such as a

revolution that consists of stealing people’s property), is not a legitimate revolution at all

in the eyes of the Declaration’s libertarian theory; it would be merely a massive criminal

act or coup.

47 A. Rand, “Man’s Rights,” The Virtue of Selfishness, (New York: Signet, 1964).

48 Basler (1953) 2:266.

These arguments are all essentially rewordings of libertarianism’s famous maxim

against the initiation of force. Libertarian theory holds that political institutions are

justified only insofar as they protect the freedom of the individuals who make up that

society. A political society’s “right to self-determination,” therefore, is not a

fundamental principle according to libertarianism, but is a consequence and function of

the self-determination of individuals who make up that society.

The non-initiation of force principle means that the distinction between a

revolutionary act and a crime is that the former is a kind of self-defense, undertaken to

protect individual rights, while the latter is an initiation of force, to violate the rights of

others, or protect the proceeds of some robbery. In the former case, libertarianism holds

that it is legitimate to commit acts of physical force in retaliation against those who have

initiated its use; the American Revolution, for instance, while illegal, was a legitimate act

of revolution because Parliament had declared its right to “bind [the American colonies]

in all cases whatsoever,” and had engaged in “a long train of abuses and usurpations.”

Americans had the right to defend themselves by throwing off such government, even if

doing so cost many lives.

[*77] Analyzing the alleged “revolution” of 1861 also requires understanding the

purposes behind the act: why did the Confederacy fired on Fort Sumter, and thus violate

the supreme law of the land? Although several writers have tried to claim that the Civil

War was not fought over slavery, but over issues of domestic economic policy,49 these

49 See e.g., Livingston (2002) pp. 72-76.

claims are highly exaggerated.50 Mississippi’s declaration of secession, for example,

stated unequivocally:

In the momentous step which our State has taken…it is but just

that we should declare the prominent reasons which have induced our

course.

Our position is thoroughly identified with the institution of

slavery—the greatest material interest of the world. Its labor supplies the

product which constitutes by far the largest and most important portions of

commerce of the earth. These products are peculiar to the climate verging

on the tropical regions, and by an imperious law of nature, none but the

black race can bear exposure to the tropical sun…. [A] blow at slavery is

a blow at commerce and civilization…. There was no choice left us but

submission to the mandates of abolition, or a dissolution of the Union,

whose principles had been subverted to work out our ruin.

Domestic economic policy (other than that relating to slavery) is nowhere

mentioned in this document, or in South Carolina’s declaration of secession, which

focused only on “The right of property in slaves,” and complained that other sates “have

denied the rights of property established…have denounced as sinful the institution of

slavery…[and] have encouraged and assisted thousands of our slaves to leave their

homes.” Georgia’s declaration reiterated its “numerous and serious causes of complaint

against [the] non-slave-holding…States with reference to the subject of African slavery,”

and although it complained of the fact that Northern economic interests had received

federal protection (“they have succeeded in throwing the cost of light-houses, buoys, and

the maintenance of their seamen upon the Treasury”), it did so only to protest that federal

protection of slavery was inadequate. Texas’ declaration of secession complained that

“In all the non-slave-holding States…the people have formed themselves into a great

sectional party…based upon an unnatural feeling of hostility to these [*78] Southern

50 E. Volokh, “More on Secession And Slavery.” The Volokh Conspiracy.

http://volokh.com/2002_04_28_volokh_archive.html#76098962 (2002)

States and their beneficent and patriarchal system of African slavery, proclaiming the

debasing doctrine of equality of all men, irrespective of race or color—a doctrine at war

with nature, in opposition to the experience of mankind, and in violation of the plainest

revelations of Divine Law.”51

These documents could hardly be clearer. The Confederate states, whatever their

other reasons for seceding, were primarily moved by the desire to preserve their slave

property from interference by the federal government. Or, more accurately, in reaction

against the election of a President who had pledged himself to halt the spread of slavery

into the western territories.52 Although the Confederates phrased their arguments in

terms of “freedom,” it was the “freedom to enslave” that they were defending. Indeed,

the Constitution of the Confederate States of America, section IX clause 4,

unambiguously declared that “No...law denying or impairing the right of property in

negro slaves shall be passed.” This clause demonstrates just how off the mark

Mencken’s criticism of Lincoln really was. It was not true that “the

Confederates…fought for the right of their people to govern themselves.”53 The

Confederates fought for the (literally absolute) right of white people to govern black

people, without the black people’s consent.

Unlike present-day defenders of the South, the leaders of the Southern cause

realized that their cause could find no support in the Declaration of Independence. Thus

51 These declarations are available at http://www.yale.edu/lawweb/avalon/csa/csapage.htm.

52 The Constitution, of course, barred the federal government from depriving southerners of their slaves,

except possibly through condemnation in exchange for just compensation. But it did permit the Congress

to bar slavery from the western territories, which would become states eventually. If admitted as free

states, this would mean that southerners would eventually find themselves outvoted in Congress, which

could lead to the ultimate extinction of slavery. It was Lincoln’s insistence on forbidding slavery in the

west—as enunciated in his Cooper Union speech, for example—that served as the proximate cause of the

war. McPherson (1988) pp. 51-72.

53 Mencken (1982) p. 223.

they rarely based their arguments on the Declaration, and in fact explicitly denounced it.

“There is not a word of truth in it,” said John C. Calhoun.54 The principle that all men are

created equal, he said was “inserted into our Declaration of Independence without any

necessity. It made no necessary part of our justification for separating from the parent

country, and declaring ourselves independent.” Others went [*79] farther. Senator Pettit

of Indiana declared it a “self-evident lie.”55 Governor Hammond of South Carolina—

who had once said “Slavery is…the greatest of all the great blessings which a kind

Providence has ever bestowed upon our glorious region”56—denounced the “muchlauded

but nowhere accredited dogma of Mr. Jefferson that all men are created equal.”57

Contrary, then, to the oft-repeated claim that the Civil War was not about slavery,

the question of slavery answers the essential question which determines whether

secession in 1860 was an act of revolution on one hand, or a criminal conspiracy, in the

other. The secession of 1861 was not a legitimate revolution because its “cornerstone”

rested on the “the great truth that the negro is not equal to the white man; that slavery—

subordination to the superior race—is his natural and normal condition.”58 As Lincoln

had said before the war,

We all declare for liberty; but in using the same word we do not all mean

the same thing. With some the word liberty may mean for each man to do

as he pleases with himself, and the product of his labor; while with others

the same word may mean for some men to do as they please with other

men, and the product of other men’s labor. Here are two, not only

different, but incompatible things, called by the same name—liberty. And

it follows that each of the things is, by the respective parties, called by two

different and incompatible names—liberty and tyranny. The shepherd

54 Cong. Globe, 30th Cong. 1st Sess., p. 875 (1848)

55 Cong. Globe, 33rd Cong., 1st Sess. p. 214 (1854)

56 W. L. Miller, Arguing About Slavery. (New York: Knopf, 1988) p. 134.

57 C. Merriam, History of American Political Theories (New York: Kelly 1969 (1903)) p. 230; see further

C. Oliver, “Southern Nationalism” Reason, Aug.-Sep. 2001.

58 A. Stephens, “Cornerstone Speech” http://www.pointsouth.com/csanet/greatmen/stephens/stephenscorner.

html (1861).

drives the wolf from the sheep’s throat, for which the sheep thanks the

shepherd as a liberator, while the wolf denounces him for the same act as

the destroyer of liberty, especially as the sheep was a black one. Plainly

the sheep and the wolf are not agreed upon a definition of the word

liberty.59

The Confederacy, built upon the wolf’s definition of liberty, was an illegitimate

government by the libertarian standards of the Declaration of Independence. When the

Confederacy initiated force by firing on Fort [*80] Sumter, therefore, it became the

responsibility of the President to “take Care that the Laws [including the supreme law of

the land] be faithfully executed,”60 by putting down the rebellion by force if necessary.

IV. Why Libertarians Defend The South

Among the reasons that so many libertarians argue that the Confederacy was in

the right in the Civil War is their perception that Union victory ushered in an era of

federal expansion and control over the economy. It is certainly true that in the late

nineteenth century, the federal government intervened more and more in national

economic policy. But blaming this on Union victory is problematic at best. For one

thing, the argument partakes of the post hoc fallacy. While it is true that government

manipulation of the economy increased in the years following the war, this had many

causes, especially the rise of the Populist, and later Progressive, political movements.

These can be only distantly connected to the Union cause. Moreover, while there was

much to deplore in the culture of Yankee political economy, there was at least as much to

deplore about the culture of the antebellum south.

59 Basler (1953) 7:301-302.

60 U.S. Const. Art. II § 3.

More specifically, some libertarians argue that the Union victory caused an

expansion of federal authority by destroying the political will of states to resist the

expansionism of the federal government.61 After such a bloody experience, states were

less willing to say no when the federal government proposed to step on state prerogatives.

Although there is some truth to this argument, there are two mitigating thoughts that must

be kept in mind. First, it did not entirely destroy the will of states to resist federal

encroachment: as the Civil Rights era of the 1950s and 1960s revealed, southern states

were still quite willing to resist what they perceived as federal encroachment, through the

policy of “massive resistance” to integregation. But, secondly, that experience shows

that state resistance to federal authority is just as likely to be inimical to individual liberty

as it is to redound to the benefit of individual liberty. State resistance, after all, is usually

predicated not on protecting individuals from oppression, but on protecting the official

dignity of state governments. For libertarians to venerate state government is therefore a

risky enterprise. As Madison explained in the Federalist, the legitimacy of state

governments is only valid so long as the states protect the freedom of Americans: “is it

not preposterous,” he asked,

to urge as an objection to [the Constitution]…that such a government may

derogate from the importance of the governments [*81] of the individual

States? Was, then, the American Revolution effected, was the American

Confederacy formed, was the precious blood of thousands spilt, and the

hard-earned substance of millions lavished, not that the people of America

should enjoy peace, liberty, and safety, but that the government of the

individual States…might enjoy a certain extent of power, and be arrayed

with certain dignities and attributes of sovereignty? We have heard of the

impious doctrine in the Old World, that the people were made for kings,

not kings for the people. Is the same doctrine to be revived in the New…?

[T]he public good, the real welfare of the great body of the people, is the

supreme object to be pursued; and…no form of government whatever has

61 See e.g., W. Williams, “The Civil War’s Tragic Legacy,” Ideas on Liberty, Jan.1999.

any other value than as it may be fitted for the attainment of this object.

[A]s far as the sovereignty of the States cannot be reconciled to the

happiness of the people, the voice of every good citizen must be, Let the

former be sacrificed to the latter.62

While state resistance to federal expansion may be helpful for protecting

individual liberty, it has also often been inimical, and this was never more true than in the

case of the Civil War.

Finally, I suspect one reason libertarians are misled into embracing the

Confederate cause is because of the formative event in the lives of many libertarians, as

well as the Libertarian Political Party: The Vietnam War. The lessons that many

Vietnam protestors drew from that experience were that war is never justified, and that it

is simply “none of our business” what another country’s rulers do to the people of that

country. If the Vietnamese “choose” to live under communism, other nations must not

interfere. Likewise, this argument goes, if southerners in the 1860s chose to enslave

blacks, that may have been wrong, but it was none of the Union’s business. Seeing the

Confederacy through the lens of the Vietnam experience, however, is misleading. First,

it ignores the fact that, unlike in foreign policy, where a nation may choose whether or

not to intervene in a conflict, the Constitution requires the president to faithfully execute

the law, including the Constitution itself. Second, such a view obscures the ultimate

values of libertarian political philosophy. Although it is true that Americans do not owe a

duty to intervene when other nations’ rulers oppress their peoples, it is not true that other

nations have the right to oppress their people. To say that another nation’s oppression of

its people is “none of our business” is similar to what Lincoln described as the perverse

62 Rossiter (1961) p. 289.

notion “that ‘if one man would [*82] enslave another, no third man should object.’”63

The United States, and every other nation, does have the right, though not the duty, to

liberate oppressed peoples held captive by dictatorships. The federal government had the

right, and the duty, to put down the Confederate rebellion.

War is a terrible thing. But libertarianism holds that it is justified at times, when

undertaken in defense of individual liberty. As Jefferson said, “all men know that war is

a losing game to both parties. But they know also that if they do not resist encroachment

at some point, all will be taken from them.... It is the melancholy law of human societies

to be compelled sometimes to choose a great evil in order to ward off a greater….”64 The

Civil War was an awful conflict, costing hundreds of thousands of lives. But the right

side did prevail in that war, and libertarians should stop doing themselves the great

disservice of defending a cruel and oppressive slave society.

References

Ames, H., ed. 1911. State Documents on Federal Relations (Philadelphia: University of

Pennsylvania).

Anastaplo, G. 2000. “John Quincy Adams Revisited.” Oklahoma City University Law

Review 25:119.

Fehrenbacher, D. 1989. Constitutions and Constitutionalism in the Slave-Holding South.

(Atlanta: University of Georgia Press).

Lence, R., ed. 1992. Union and Liberty: The Political Philosophy of John C. Calhoun

(Indianapolis: Liberty Fund).

63 Basler (1953), 3:538.

64 Peterson (1984) p. 356.

[Delacon]

I've posted this paper in response to this thread:

Guess What Folks - Secession Wasn't Treason The Copperhead Chronicles ^ | August 2007 | Al Benson http://www.freerepublic.com/focus/f-news/1887357/posts

My apologies for the formatting errors. I had to convert it from PDF and it didn't got smoothly. I suggest going to the link http://papers.ssrn.com/sol3/papers.cfm?abstract_id=933676 and downloading the original PDF file if you are interested.

[mnehring]

bump for later read...

FYI, the best way to clean up a pdf copy is to paste it into notepad before pasting it into a thread. This strips out all the hidden formatting objects like line breaks, that cause problems when copying from pdfs.

[Uncle Miltie]

How Libertarians Ought To Think About The U.S. Civil War

1. Smoke some weed.

2. Ignore long treatises.

3. Eat brownies.

4. Repeat.

[JamesP81]

ping

[groanup]

here we go:

[Delacon]

;)

[svcw]

The more I learn about libertarians the more I think it is just another way of spelling anarchy.

[dinoparty]

Ooh boy, can we get a conservative vs. libertarian flame war, as well as a union vs. neo-confederate flame war at the same time? LOL.

[dinoparty]

You forgot, “have sex with homely woman”, which comes after “smoke weed”.

[Mr Ramsbotham]

I had pretty much the same dilemma: two toes wanted to secede from my right foot and I couldn’t figure out whether I should let them. Finally I let them have their way, and I think I’m better off for it—apart from the gimpy walk, of course.

[ml/nj]

The distinction between secession and revolution is a distinction without a difference. Our Revolution was effectively a secession from the British Empire. The Declaration says "That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it." Any form, and whenever seem pretty all encompassing, and alter/abolish seem to me what the Southerners were seeking. Anyone who suggests that the government of South Carolina, &c. wouldn't have be altered following secession is practicing sophistry.

ML/NJ

[Delacon]

“Laws against sodomy are honored in the breech”

Tsk. Tsk.

[Delacon]

“The distinction between secession and revolution is a distinction without a difference. Our Revolution was effectively a secession from the British Empire. The Declaration says “That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it.” Any form, and whenever seem pretty all encompassing, and alter/abolish seem to me what the Southerners were seeking. Anyone who suggests that the government of South Carolina, &c. wouldn’t have be altered following secession is practicing sophistry.”

Well there is a distiction between secession and revolution. Look up either word in any dictionary and you won’t find them to be synonyms. It is theoreticly possible to secede without having a revolution and there have been many revolutions that didn’t involve any secession(France’s and Russia’s revolution for one). Mr. Sandefur goes into detail on why the South’s secession wasn’t constitional and therefore justifiably put down and then goes on to explain why it wasn’t wasn’t a valid revolution.

[ml/nj]

I guess if you want to ignore the arguments I made that is your prerogative. Do you really think we didn't secede from the British Empire? Of course the words "secession" and "revolution/revolt" mean different things, but so do "war" and "fight." All apply to what happened here when "Honest Abe" was President.

ML/NJ

[Bubba Ho-Tep]

The Declaration says "That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it." Any form, and whenever seem pretty all encompassing, and alter/abolish seem to me what the Southerners were seeking.

By that reading, you'd have had no issue with a slave uprising in the south, right? Would you have argued that the south had no right to put down such a rebellion? And if any rebellion is a right, why does the Constitution talk about suppressing insurrections?

Secession is a legal construct. Revolution is an overthrow of the existing legal construct and its replacement with a new one. The American Revoution was the latter, and its leaders made no pretense that what they were doing was somehow legal.

[mrmargaritaville]

She may be ugly before smoking the weed, but she is generally NOT ugly after smoking the weed. As I’ve always said “Beauty is in the eye of the beer holder”-or in this case the bong holder. I have always said that when I was single I never went to bed with an ugly woman-but I sure woke up with a few.

[wardaddy]

anyone interested.

I can offer pistols at dawn.

I live rather close to Clover Bottom, Old Hickory’s preferred ground for sending ingrates to their maker.

[ml/nj]

By that reading, you'd have had no issue with a slave uprising in the south, right? Would you have argued that the south had no right to put down such a rebellion? And if any rebellion is a right, why does the Constitution talk about suppressing insurrections?

Of course, the slaves had a right to rebel; and their owners had a right to suppress. I wasn't considering rights but merely that secession and revolution/rebellion both apply to the unpleasantness during the term of "Honest Abe."

Why does the Constitution talk about suppressing insurrections? I suppose for the same reason that the Federalist Papers talk about rebelling:

Federalist No. 28 (Hamilton) excerpt:

If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.

You might note that the first part of this excerpt about the "usurpations of the national rulers" applies directly to what the Southern States did. But WTF did Hamilton know? He was just a Framer.

ML/NJ

[Delacon]

Well, you used the Declaration to justifiy the south's secession as revolution. Here is Mr. Sandefur's response to that from the article:

The Declaration of Independence enunciates these principles in what is almost a syllogism: “all men are created equal... endowed by their Creator with certain unalienable Rights... among these are Life, Liberty and the pursuit of Happiness... to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed... whenever any Form of Government becomes destructive of these ends... it is their right, it is their duty, to throw off such Government....” This right and duty, however, may only be exercised after “a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce [the people] under absolute Despotism.”

The Declaration of Independence, therefore, far from recognizing any “unconditional” right of people to overthrow their government, places several important limits on rebellion: it is justified only by a collective act of self-defense, and even then, only after “a long train of abuses and usurpations.” And a rebellion which institutes a new government based not on securing individual rights, but on violating them (such as a revolution that consists of stealing people’s property(he means the south's stealing of the slaves right to own themselves), is not a legitimate revolution at all in the eyes of the Declaration’s libertarian theory; it would be merely a massive criminal

act or coup.

[Delacon]

Funny you should mention Andrew Jackson. He was anti-secession to. From President Jackson’s Proclamation Regarding Nullification, December 10, 1832:

“This right to secede is deduced from the nature of the Constitution, which they say is a compact between sovereign States who have preserved their whole sovereignty, and therefore are subject to no superior; that because they made the compact, they can break it when in their opinion it has been departed from by the other States. Fallacious as this course of reasoning is, it enlists State pride, and finds advocates in the honest prejudices of those who have not studied the nature of our government sufficiently to see the radical error on which it rests.

The people of the United States formed the Constitution, acting through the State legislatures, in making the compact, to meet and discuss its provisions, and acting in separate conventions when they ratified those provisions; but the terms used in its construction show it to be a government in which the people of all the States collectively are represented. We are ONE PEOPLE in the choice of the President and Vice President. Here the States have no other agency than to direct the mode in which the vote shall be given. The candidates having the majority of all the votes are chosen. The electors of a majority of States may have given their votes for one candidate, and yet another may be chosen. The people, then, and not the States, are represented in the executive branch.

In the House of Representatives there is this difference, that the people of one State do not, as in the case of President and Vice President, all vote for all the members, each State electing only its own representatives. But this creates no material distinction. When chosen, they are all representatives of the United States, not representatives of the particular State from which they come. They are paid by the United States, not by the State; nor are they accountable to it for any act done in performance of their legislative functions; and however they may in practice, as it is their duty to do, consult and prefer the interests of their particular constituents when they come in conflict with any other partial or local interest, yet it is their first and highest duty, as representatives of the United States, to promote the general good.

The Constitution of the United States, then, forms a government, not a league, and whether it be formed by compact between the States, or in any other manner, its character is the same. It is a government in which ale the people are represented, which operates directly on the people individually, not upon the States; they retained all the power they did not grant. But each State having expressly parted with so many powers as to constitute jointly with the other States a single nation, cannot from that period possess any right to secede, because such secession does not break a league, but destroys the unity of a nation, and any injury to that unity is not only a breach which would result from the contravention of a compact, but it is an offense against the whole Union. To say that any State may at pleasure secede from the Union, is to say that the United States are not a nation

because it would be a solecism to contend that any part of a nation might dissolve its connection with the other parts, to their injury or ruin, without committing any offense. Secession, like any other revolutionary act, may be morally justified by the extremity of oppression; but to call it a constitutional right, is confounding the meaning of terms, and can only be done through gross error, or to deceive those who are willing to assert a right, but would pause before they made a revolution, or incur the penalties consequent upon a failure.

Because the Union was formed by compact, it is said the parties to that compact may, when they feel themselves aggrieved, depart from it; but it is precisely because it is a compact that they cannot. A compact is an agreement or binding obligation. It may by its terms have a sanction or penalty for its breach, or it may not. If it contains no sanction, it may be broken with no other consequence than moral guilt; if it have a sanction, then the breach incurs the designated or implied penalty. A league between independent nations, generally, has no sanction other than a moral one; or if it should contain a penalty, as there is no common superior, it cannot be enforced. A government, on the contrary, always has a sanction, express or implied; and, in our case, it is both necessarily implied and expressly given. An attempt by force of arms to destroy a government is an offense, by whatever means the constitutional compact may have been formed; and such government has the right, by the law of self-defense, to pass acts for punishing the offender, unless that right is modified, restrained, or resumed by the constitutional act. In our system, although it is modified in the case of treason, yet authority is expressly given to pass all laws necessary to carry its powers into effect, and under this grant provision has been made for punishing acts which obstruct the due administration of the laws.

It would seem superfluous to add anything to show the nature of that union which connects us; but as erroneous opinions on this subject are the foundation of doctrines the most destructive to our peace, I must give some further development to my views on this subject. No one, fellow-citizens, has a higher reverence for the reserved rights of the States than the magistrate who now addresses you. No one would make greater personal sacrifices, or official exertions, to defend them from violation; but equal care must be taken to prevent, on their part, an improper interference with, or resumption of, the rights they have vested in the nation.

The line has not been so distinctly drawn as to avoid doubts in some cases of the exercise of power. Men of the best intentions and soundest views may differ in their construction of some parts of the Constitution, but there are others on which dispassionate reflection can leave no doubt. Of this nature appears to be the assumed right of secession. It rests, as we have seen, on the alleged undivided sovereignty of the States, and on their having formed in this sovereign capacity a compact which is called the Constitution, from which, because they made it, they have the right to secede. Both of these positions are erroneous, and some of the arguments to prove them so have been anticipated.

The States severally have not retained their entire sovereignty. It has been shown that in becoming parts of a nation, not members of a league, they surrendered many of their essential parts of sovereignty. The right to make treaties, declare war, levy taxes, exercise exclusive judicial and legislative powers, were all functions of sovereign power. The States, then, for all these important purposes, were no longer sovereign. The allegiance of their citizens was transferred in the first instance to the government of the United States; they became American citizens, and owed obedience to the Constitution of the United States, and to laws made in conformity with the powers vested in Congress. This last position has not been, and cannot be, denied. How then, can that State be said to be sovereign and independent whose citizens owe obedience to laws not made by it, and whose magistrates are sworn to disregard those laws, when they come in conflict with those passed by another? What shows conclusively that the States cannot be said to have reserved an undivided sovereignty, is that they expressly ceded the right to punish treason-not treason against their separate power, but treason against the United States. Treason is an offense against sovereignty, and sovereignty must reside with the power to punish it. But the reserved rights of the States are not less sacred because they have for their common interest made the general government the depository of these powers. The unity of our political character (as has been shown for another purpose) commenced with its very existence. Under the royal government we had no separate character; our opposition to its oppression began as UNITED COLONIES. We were the UNITED STATES under the Confederation, and the name was perpetuated and the Union rendered more perfect by the federal Constitution. In none of these stages did we consider ourselves in any other light than as forming one nation. Treaties and alliances were made in the name of all. Troops were raised for the joint defense. How, then, with all these proofs, that under all changes of our position we had, for designated purposes and with defined powers, created national governments-how is it that the most perfect of these several modes of union should now be considered as a mere league that may be dissolved at pleasure ? It is from an abuse of terms. Compact is used as synonymous with league, although the true term is not employed, because it would at once show the fallacy of the reasoning. It would not do to say that our Constitution was only a league, but it is labored to prove it a compact (which, in one sense, it is), and then to argue that as a league is a compact, every compact between nations must, of course, be a league, and that from such an engagement every sovereign power has a right to recede. But it has been shown that in this sense the States are not sovereign, and that even if they were, and the national Constitution had been formed by compact, there would be no right in any one State to exonerate itself from the obligation.

So obvious are the reasons which forbid this secession, that it is necessary only to allude to them. The Union was formed for the benefit of all. It was produced by mutual sacrifice of interest and opinions.”
http://www.yale.edu/lawweb/avalon/presiden/proclamations/jack01.htm