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America's Founders on the Matter of States' Rights

In the aftermath of the War between the States, the federal government asserted the notion that "might makes right." As the Federals mobilized troops throughout the Southern states, during and for many years after the war, they busied themselves with political reconstruction of the Union, flatly disregarding the question of constitutionality. Upon the surrender of the Confederate States, the federal government firmly established their claim, and it has since gone without question. However, one particular judge has issued a dissenting opinion: that is the judge of reason, which implores us to reexamine this claim, and to reassert the truth in the matter of states’ rights. 

Upon claiming victory in their siege upon the South, and after shredding the very fabric of the Constitution, the Federals celebrated the "preservation of the Union" as they brought the Southern states under their control as "conquered provinces". From their point of view, the truth was simply irrelevant, or otherwise whatever they determined it should be. Strangely their assertion that "might makes right" seems to stand alone today, as it did then, as a sufficient case for its acceptance. After all, upon having proven sufficient might, what use is there in any argument? 

Should the argument prevail in reason, and should it accord with the facts, it is still impotent against the conquerers who assert that "might makes right." After all, wherever the conquerers succeed, they are unaccountable to the truth; they write the history and, at their will, determine the bounds of allowable opinion, penalizing those who dare to do anything more with the truth than to contemplate it. Even still, one’s sympathy, whether expressed or suspected, is often sufficient cause for public harassment or arrest.

So what use is there in seeking the truth about the matter when the findings stand to change nothing of any material consequence? Like any other inheritance left to our heirs, we may not enjoy it materially in our time, but we shall enjoy the prospect of its impact in theirs. While it may be of little consequence today, its survival is key: the abandonment of truth is even more dangerous than the regime which suppresses it. The value of truth is within itself; it is, like virtue, its own reward, independent of appraisal and approbation. He who pursues the truth makes an honest living, and thus makes a sufficient case for its practice. 

In the case of truth, as in life, the journey is often more important than the destination. In the case of truth, the journey brings unrivaled riches in the form of knowledge, wisdom and discipline; it serves likewise as a beacon for others in pursuit of the same, and it blazes the trail for continued discovery and preserves its findings for future generations. While the discoveries may not revolutionize public opinion, and while they may even face rejection or outright condemnation, they are more important than one can possibly fathom. 

In short, a commitment to truth affords our heirs a chance of knowing it, and with it a chance of an honest and fulfilling life. The forces which seek to suppress the truth are more pernicious than one can possibly imagine; not even those undertaking its suppression can appreciate its implications. 

Once a people abandon the truth, in time they can be made to believe almost anything. As a matter of practice, the truth keeps a people honest, principled and prepared to defend themselves against mischief and deceit. At the interpersonal level, the abandonment of truth will corrupt; at the social and political levels, it stands to destroy.

In the case of the War between the States, the author’s cause is to determine the truth in the matter of states’ rights. With the help of the architects of the United States, we will seek to ascertain the truth about the designs and the intentions of their Union. We will ascertain whether "might makes right," and whether the federal government even possessed the authority to exercise its might. For these purposes, we will rely exclusively on personal testimonies and the written word; piece by piece, we will exhume the truth. As Jefferson Davis proclaimed, "Truth crushed to the earth is truth still and like a seed will rise again." 

For the purposes of seeking the truth about the designs and the intentions of the Union, we shall examine its foundations through the eyes of its architects, the proceedings of their conventions, and the contents of their final product: the Constitution. Let us begin with the Constitutional Convention.

During the Constitutional Convention, an early proposal sought to confer upon the Congress the power "to call forth the force of the Union against any member of the Union failing to fulfill its duty under the articles thereof." Upon consideration of this proposition, a certain observer noted that "a union of States containing such an ingredient seemed to provide for its own destruction." The observer continued: "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." 

The observer hoped that such a system would be framed as might render this recourse unnecessary, and moved that the clause be postponed. This motion was adopted, and the proposition was never again revived. The same observer subsequently commented on an appeal to force: "Was such a remedy eligible? Was it practicable? Any government for the United States, formed on the supposed practicability of using force against the unconstitutional proceedings of the States, would prove as visionary and fallacious as the government of Congress." 

Every such proposition seeking the same or any similar object was promptly rejected by the convention. Who was that observer? Of course, it was James Madison, otherwise known as the "Father of the Constitution".

On the subject at hand, we have still further context from a fellow observer, George Mason of Virginia, who said of such a proposition: "Will not the citizens of the invaded State assist one another, until they rise as one man and shake off the Union altogether?" As urged by their own Declaration of Independence, "when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security." 

In the case of invasion or war upon any fellow state, the Constitution is most unequivocal on the subject: per Article III, Section 3, "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." Consistent with the rest of the Constitution, the term "them" refers to the "states respectively", each constituting "one of the United States"; they were not, in acceding to the Constitution, to be taken as part of one monolithic body. 

Thus, the Northern onslaught upon the Southern states, as one Charles Dickens described it in 1862, qualified as treason; it forever mutilated their compact in both form and spirit, and irrevocably shattered the designs of American federalism. Their onslaught upon the Southern states not only justified the separation, but made it mankind’s "duty" to "throw off such Government, and to provide new Guards for their future security." 

Likewise, the general government’s onslaught not only disgraced the Declaration of Independence, but plainly violated the very Constitution that brought that government to life. It stands to reason, thus, that the sovereigns which brought it to life ought rightly to reserve the power to secede, to resume the powers formerly conferred to that government, and, if necessary, to destroy the monster to prevent any further damage. As written in the Declaration of Independence, "[they] are, and of Right ought to be, Free and Independent States," free to associate, just as they are free from coercion and thus free to dissolve their associations. 

On the subject of dissolution, otherwise termed secession, there is the question of whether this power remains with the states, respectively. There is, at first, the question of whether the states are even sovereign and independent. Fortunately, the Father of the Constitution was unambiguous on this particular subject. The reader finds a clear answer to this question in Federalist No. XL:

"We have seen that, in the new Government as in the old, the general powers are limited; and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction."

In a letter to George Washington on October 23, 1786, U.S. Secretary at War Henry Knox affirmed the same, regarding "Our political machine" as "constituted of thirteen independent sovereignties."

This principle was ultimately enshrined in the Constitution's Tenth Amendment, which Thomas Jefferson regarded as the cornerstone of the Constitution:

The Tenth Amendment to the Constitution reads, "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." 

Since the Constitution omits any mention of the power of the federal government to prevent separation or secession, this power is rightly reserved to the "States respectively, or to the people." 

Article II of America's original Articles of Confederation expressed this right in even clearer terms:

"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."

For those who'd dare to question the appropriateness of any reference to the Articles of Confederation, it's worth noting that James Madison, in Federalist No. XL, described the principles of the Constitution as being substantially the same as those of the Articles of Confederation. According to Madison, "The truth is that the great principles of the Constitution proposed by the Convention may be considered less as absolutely new, than as the expansion of principles which are found in the Articles of Confederation."

On the subject of association, the "American Confederacy" has been described as a "perpetual union". How does this alter the power of secession? In short, it affirms it. 

According to Theophilus Parsons, the eminent jurist of Massachusetts, in his work Rights of a Citizen, "If the articles between the partners do not contain an agreement that the partnership shall continue for a specified time, it may be dissolved at the pleasure of either partner.”

It is clear, then, that the states independently possess the power to dissolve their associations with the "perpetual union" at their own discretion. While this singlehandedly invalidates any argument for coerced association, we shall deal with it nevertheless. 

First, it is worth noting that opponents to the right of secession claim that the Union could not long endure so long as its members reserve the power to withdraw. These opponents claim that even the most trifling of differences would then threaten its survival. As it turns out, the Founders addressed this very subject in the Declaration of Independence: “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.” 

It is, thus, all the less likely that mankind will reliably dare to perform such a miracle as secession, even on its most warranted occasions; on the contrary, it is all the more likely that the people will suffer the status quo, from their own indolence, until they are clamoring desperately for their survival under the thumb of the most lamentable despotism. Indeed, in the case of government, the inertia of the status quo is likely to secure the same ends as the power of coercion. However, wherever that power of coercion is left to maintain the association, it is sure to emerge upon the most desperate of occasions; and wherever that power has been established de jure or de facto, it is sure to stifle accountability, to suppress opposition, and to beget further abuses of power. 

You can rest assured that, wherever any government has established the power of coercion, the power is a prelude to future ills. After all, the power to secede, to dissolve one's associations, serves as the final check against tyranny; it is, above all, the last resort for liberty. 

Per the Declaration of Independence, "Governments... derive their just powers from the consent of the governed." Wherever that consent is withdrawn, the association is null. This vision of government was intentional, as it empowers the people and the states, respectively, as the final arbiters in their associations; as the Declaration of Independence states, it empowers them on occasion to "institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness." After all, it is "Safety and Happiness" that we seek, not the preservation of those associations which have become destructive of those ends. The latter is the object of coercion.

On this subject, there has been quite a ruckus around Article VI, Clause 2, commonly regarded as the Supremacy Clause of the Constitution. Some loose interpretations and judicial activists have taken the clause to afford the general government carte blanche in carrying out the affairs of government, and, by extension, justifying the continued Union at any cost, by the most coercive of means; they claim that, in reigning supreme over all matters pertaining to law, the general government is the final and only arbiter thereof, and that the states are bound eternally to their association. 

Article VI, Clause 2, reads as follows:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding.” 

It is worth noting that, by law, convention and the knowledge of the Framers, the designs of the Republic were assumed neither permanent nor absolutely supreme, but strictly limited to the enumerated powers conferred thereupon by individual states which, in their own sovereignty and independence, first (and conditionally) authorized those powers. Indeed, it is not the general government nor the Republic itself which is supreme, but rather "The Constitution, and the Laws of the United States which shall be made in Pursuance thereof."

It was not the Republic itself which was to be regarded as supreme, but rather the few and defined powers of the Constitution, and the laws made in pursuance of it. However, those powers were not intended, by any liberal interpretation, to nullify the powers reserved to the states, respectively; nor to deny or disparage the rights of the people of the several states. Indeed, the Constitution was proposed, scrutinized, and ratified as a construction between the states, respectively. In fact, the original draft of the preamble actually consisted of the names of the several states, but it was later reduced to “the United States” in the plural after concerns that some of the states would ultimately refuse to ratify the new Constitution. 

One vital aspect of sovereignty is that the sovereign can willingly agree to delegate authority without necessarily precluding the resumption of that authority. In the case of the Supremacy Clause, it does not preclude the resumption of any powers by the states, respectively. It merely declares supreme the Laws of the United States, in pursuance of the Constitution, and thereby binds the Judges of every state, (critically) on the assumption of each state's continued membership in the Union. This is precisely where the “Authority of the United States” is vested: in the authority of the states (independent of each other, and each as part of the whole), as expressed by the sovereignty permitted them by the people.

The truth is that sovereignty, from the people through their representatives, is the underpinning for just government. Put differently, just government is derived from the continued consent of the governed; a form of consent which can be revoked at their pleasure, so long as it compensates for any injury to the other party. Ultimately, the general government was devised to secure the mutual interests of the several states, and their inhabitants, not to bind them unconditionally. Their compacts, first the Articles of Confederation then the Constitution, were held as the expression of the several states in their effort to form a more perfect Union; neither their compacts nor the general government were ever to be regarded as their captors. 

Indeed, the Constitutional Republic of the United States was designed not as an omnipotent central authority, but rather as the expression of individual states through their representatives, for the mutual advantages of defense and free trade. At no time did any of the states relinquish their independence or sovereignty; indeed, several of the states even made certain to unequivocally declare their independence and sovereignty in their ratification documents, and therein even reasserted their authority to resume, at their own discretion, the powers formerly conferred. 

Whether nullification or secession, the states reserved every power to check the central government and, by their own conviction and discretion, and in accordance with the law, to nullify abuses of power and dissolve their union. Ultimately, it is the “few and defined” powers of the Constitution, not the Republic itself, which were to be regarded as supreme.

Of course, as already stated, the Constitution’s supremacy is limited to the pursuance of the law as explicitly written, not as implied nor as exigent circumstances may seem to warrant. What’s more, its supremacy binds none of the states, but specifically the “Judges in every State”. 

However, just as with any consensual association, the Constitution was and, by law, remains binding only through the continued assent of the states, respectively. Just as any member to any indefinite association is free to dissolve that association at any time, not a single state is bound to the Union; each is free to resume the full measure of its power, without penalty and, in Parson’s words, only so long as it does not “exercise this power wantonly and injuriously to the other partners, without making himself responsible for the damage he thus causes.”

On the subject of coercion, we have still further testimony from Oliver Ellsworth of Connecticut, the future senator and Chief Justice of the United States, who noted likewise in the ratifying convention of Connecticut: “This Constitution does not attempt to coerce sovereign bodies, States, in their political capacity.” Ellsworth continued: “No coercion is applicable to such bodies but that of an armed force. If we should attempt to execute the laws of the Union by sending an armed force against a delinquent State, it would involve the good and bad, the innocent and guilty, in the same calamity.” 

Alexander Hamilton said likewise in the convention of New York: “To coerce the States is one of the maddest projects that was ever devised.”

Hamilton continued: 

“What picture does this idea present to our view? A complying State at war with a non-complying State: Congress marching the troops of one State into the bosom of another: Here is a nation at war with itself. Can any reasonable man be well disposed toward a government which makes war and carnage the only means of supporting itself — a government that can exist only by the sword? But can we believe that one State will ever suffer itself to be used as an instrument of coercion? The thing is a dream — it is impossible.” 

Formerly a mover of the original proposition to authorize the forces of the Union against a delinquent member, Edmund Randolph, governor of Virginia, afterward, in the Virginia convention, protested against the idea of coercion against any state: 

“What species of military coercion could the General Government adopt for the enforcement of obedience to its demands? Either an army sent into the heart of a delinquent State, or blocking up its ports. Have we lived to this, then, that, in order to suppress and exclude tyranny, it is necessary to render the most affectionate friends the most bitter enemies, set the father against the son, and make the brother slay the brother? If an army be once introduced to force us, if once marched into Virginia, figure to yourselves what the dreadful consequence will be: the most lamentable civil war must ensue.”

On this particular subject, it is worth noting the words of another distinguished statesman who spoke of the states as enjoying “the exclusive possession of sovereignty” over their own territory, who termed the United States “the American Confederacy,” and who declared, “The only parties to the Constitution, contemplated by it originally, were the thirteen confederated states.” The statesman continued: 

“As between the original States, the representation rests on compact and plighted faith; and your memorialists have no wish that that compact should be disturbed, or that plighted faith in the slightest degree violated.” 

The statesman and his committee publicly voiced these views, among others, in a memorial to Congress among citizens of Boston on December 15, 1819. He served as chairman of the committee which, on the admission of the state of Missouri, affirmed that new states "are universally considered as admitted into the Union upon the same footing as the original States, and as possessing, in respect to the Union, the same rights of sovereignty, freedom, and independence, as the other States."

Near the end of his life, the statesman delivered a speech at Capon Springs, Virginia, in 1851: “If the South were to violate any part of the Constitution intentionally and systematically, and persist in so doing year after year, and no remedy could be had, would the North be any longer bound by the rest of it? And if the North were, deliberately, habitually, and of fixed purpose, to disregard one part of it, would the South be bound any longer to observe its other obligations?” 

The statesman continued: “I have not hesitated to say, and I repeat, that, if the Northern States refuse, willfully and deliberately, to carry into effect that part of the Constitution which respects the restoration of fugitive slaves, and Congress provide no remedy, the South would no longer be bound to observe the compact.” 

The statesman concluded: “A bargain can not be broken on one side, and still bind the other side.” 

This statesman, of course, is the venerable Daniel Webster, the former Federalist who represented New Hampshire and Massachusetts in Congress before serving as Secretary of State under Presidents William Henry Harrison, John Tyler, and Millard Fillmore. In addition to his illustrious political résumé, Webster was considered one of the eminent lawyers of the nineteenth century, arguing more than two-hundred cases before the Supreme Court between 1814 and his death in 1852.

Now, it is worth noting that Webster, in citing “the restoration of fugitive slaves” in his 1851 speech, specified merely one justification for any state to dissolve its association with the Union. 

According to the quote itself, “… if the Northern States refuse, willfully and deliberately, to carry into effect that part of the Constitution which respects the restoration of fugitive slaves, and Congress provide no remedy, the South would no longer be bound to observe the compact.” 

That quote provides an example of a sufficient condition, but not a necessary condition, for the dissolution of their compact. There are nearly infinite conditions which would suffice to nullify their compact, and there were indeed several causes which impelled the Southern states to the separation: among them were states’ rights, limited government, nullification, and their opposition to high tariffs. 

As declared in a familiar resolution, “when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” That example by Daniel Webster is merely one of a “long train of abuses and usurpations” which have ultimately, in the wake of federalism’s defeat, established precedent for more of the same. 

In response to this "long train of abuses and usurpations," the Confederate States remedied the deficiencies of the United States Constitution in the construction of their own. In his inaugural address on February 18, 1861, President Jefferson Davis humbly declared the same at the Alabama Capitol in Montgomery: "The Constitution formed by our fathers is that of these Confederate States, in their exposition of it, and in the judicial construction it has received, we have a light which reveals its true meaning." 

Their new construction, inspired in part from an inequitable series of abominable tariffs, specifically prohibited "duties or taxes on importations from foreign nations [to] be laid to promote or foster any branch of industry." Intending to further prohibit the misappropriation of the public purse, their Constitution asserted that none of its clauses "shall ever be construed to delegate the power to Congress to appropriate money for any internal improvement intended to facilitate commerce." 

The Confederate States made only one exception "for the purpose of furnishing lights, beacons, and buoys, and other aids to navigation upon the coasts, and the improvement of harbors and the removing of obstructions in river navigation." In all such cases, however, their Constitution required that "such duties shall be laid on the navigation facilitated thereby as may be necessary to pay the costs and expenses thereof."

Their Constitution further demanded, for "all bills appropriating money," that Congress "shall specify in Federal currency the exact amount of each appropriation and the purposes for which it is made." The Confederate States' apprehensions about "internal improvements" emerge here as well, along with their disdain for the pilfering of the public purse. There is perhaps no clearer indication of this disdain than in Article I, Section 9, Clause 10: "Congress shall grant no extra compensation to any public contractor, officer, agent, or servant, after such contract shall have been made or such service rendered." 

Clause 20 of the same section enumerated yet another demand upon Congress, so as to further prevent obfuscation and encourage transparency within government: "Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title." 

What's more, in Article II, Section 1, Clause 1, the Confederate States limited each of its presidents to a single term of six years, after which "the President shall not be reeligible." 

In Article IV, Section 3, Clause 4, the Confederate States issued their most urgent guarantee. In this clause, they committed themselves precisely where their former Union had failed them: "The Confederate States shall guarantee to every State that now is, or hereafter may become, a member of this Confederacy, a republican form of government; and shall protect each of them against invasion; and on application of the Legislature or of the Executive (when the Legislature is not in session) against domestic violence."

Through these provisions it is clear that the Confederate States were indeed troubled by a "long train of abuses and usurpations," and that they sought to remedy each of them in their new construction. Among their remedies were designs for the several causes which impelled their separation, more aptly termed "new Guards for their future security." 

For all intents and purposes, the Constitution of the Confederate States reasserted the principles of the United States Constitution, revealing its true meaning in so few modifications. Their construction reaffirmed, as Webster put it, their respect for "the restoration of fugitive slaves"; their guarantee of mutual defense, a republican form of government, and the privilege of the writ of habeas corpus; and their rejection of political corruption and protectionist tariffs which have, for so long, plagued the Southern states. Their construction was truly, in both its spirit and its expression, the Constitution formed by their fathers.

Whereas the sources cited throughout this work are of various political perspectives, they agree mutually on the objects of sovereignty, secession, and the inherent incompatibility of their Union with any instrument seeking to maintain it by force or coercion. These were then, as they ought rightly to have always been, principles virtually uncontested in the halls of the various conventions. These were, as it turns out, non-partisan views of their time, perverted merely for the benefit of politicians, their benefactors and their beneficiaries as they laid waste to their fellow man and the principles on which they based their Union. 

These are but a few of the precious artifacts of truth unearthed beneath the growing mountain of lies, the implications of which are enormous. Not only do these truths stand to shift the manner in which students view the War between the States, but they have the power to debunk the misconceptions about the men who fought admirably for the stake of the Constitution and the cause of states’ rights; they have the power to remind the students that these were flesh-and-blood human beings after all, not the caricatures they've been led to imagine.

Above all, these truths stand to demonstrate that the cause of the Confederacy was the cause of America, the cause of federalism and limited, constitutional government, and the cause of truth; that the Confederacy was merely the continuation of the bygone “American Confederacy”; that their cause was to defend their homes, their communities and their states from the unwarranted influence of the federal government. 

The cause of the federal government, on the other hand, was, as it is on nearly every occasion, the achievement of further control through the concealment of its motives. This was just as true before and during the war as it was upon its conclusion; in fact, it may rightly be said that the war never ended, that it merely changed forms through Reconstruction onward. After all, the war on truth is still ongoing. Its course depends upon the courage of those in possession, or otherwise in pursuit, of the truth.

As President Jefferson Davis proclaimed in his inaugural address, "The impartial and enlightened verdict of mankind will vindicate the rectitude of our conduct, and He who knows the hearts of men will judge of the sincerity with which we labored to preserve the Government of our fathers in its spirit."


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