Why would the minority element resist the majority’s power grab? The answer is simple enough; the minority element would be forced to accept laws harmful to its own economic and cultural development if it didn’t resist. In order to protect its rights, the smaller element would be forced to depend upon the limitations imposed by the constitution to protect it. This, after all, is the reason the safeguards were placed in the constitution.
The cause of this hypothetical conflict is purely economical. It must be remembered that the reason for the existence of the constitution is to protect the political interests of all parties. The constitution is a contract by which parties with divergent interests agree to cooperate in matters of mutual interest and at the same time provide for the protection of those rights reserved by each party. When one party to the agreement attempts to gain an unfair advantage over the remaining parties, then conflict is guaranteed.
We now have an apparent standoff, with one element determined to increase the power of the federal government and the other determined to maintain its own rights. In a political environment, nothing remains static. The element demanding a more powerful federal government would have two options. First, it could, by a loose construction of the constitution, cause certain parts to be interpreted so as to give increasing power to the central government. It could then control the central government by reason of its numerical majority. A persistent campaign to reduce and render non-functional the limitations imposed by the original constitution would be waged by the larger element. Public opinion would have to be aroused by using a highly emotional issue to justify the crusade to change the form of the original government. After all, it would be difficult indeed to inflame the public over the economic profits of a few special interest groups. The second alternative left open to the element demanding more power would be to use its position as the stronger partner to force a settlement in its favor by waging aggressive war upon the smaller element, defeating and destroying that element, and then dictating the terms of the new government.
We now have a thumbnail sketch of what would happen in a constitutional republic if two opposing economic and cultural interests were to come into conflict. As previously noted, the political environment does not remain static. In such a conflict there would be no “breaking even.” If the situation remained the same, then the smaller element would win. If the smaller element were forced to seek a compromise, then the larger element would prevail. As long as the two sides held together, each would seek to advance its own interest at the expense of the other.
Historically, the South has been the smaller element. Our forefathers made many gallant efforts to defend and protect our liberty. Yet the reality of present circumstances stands as testimony that those past efforts have failed and that something else must be done! Before our crusade begins, we should establish that the people of the South have a legal right to be free. To establish this freedom, we must answer the question, where does government acquire its right to exercise power over a people?
THE RIGHT TO GOVERN
There is within man a natural tendency to associate with his fellows. This tendency leads to the necessity of forming government. The causes that impel man to form civil governments are primarily protective in nature. Government protects the people from external and internal dangers arising from the tendency of man to be in conflict with his fellows. This conflict is accompanied by the connected passions of suspicion, jealousy, anger, and revenge. While this tendency is not the way things ought to be in a moral sense, it is the way things are in reality. Thus the need arises for some controlling power or government. In A Disquisition on Government, John C. Calhoun maintained that the moral necessity for government comes directly from God:
The Infinite Being, Creator of all, has assigned [to man] the social and political state, as best not only to impel him into the social state, but to make government necessary for man’s preservation and well being.2
To establish government, man, a free moral agent, transfers a portion of his freedom to government. Man freely consents to delegate a portion of the control he has over his life and allow that control to be exercised by government. Unfortunately for the people, government has within itself a strong tendency to abuse its powers. Those who control the government can use its powerful and dominating nature to establish itself as superior to its creators and to proclaim itself the sole judge of its own powers. Thus tyranny replaces responsible government. In our world, tyranny has been and still is the rule. A democratic republic with constitutional limits on the exercise of power is a rare exception.
The right of any government to exercise its powers over a people can be obtained only with the free and unfettered consent of those people.3 Any government that does not rule with the consent of the governed fails the test of legitimacy and therefore has no legal right to rule and shall be regarded as a tyranny. When government removes itself from the category of responsible government (i.e., ruling with the consent of those governed) and establishes its own arbitrary will as the sole judge of its own powers—that government has by its own actions renounced any claim to a legal right to govern. The people then may use whatever measure necessary to remove that government and to establish, once again, responsible government.4 The people are limited only by the exercise of prudence. Extreme measures must not be employed unless lesser measures have proven ineffective.
OUR FOUNDING FATHERS’ ATTITUDE TOWARD GOVERNMENT
The Founding Fathers’ attitude towards government can best be summed up in the words of Virginia’s first citizen, George Washington:
Government is not reason; it is not eloquence; it is force! Like fire, it is a dangerous servant and a fearful master!5
The primary desire of the framers of the United States Constitution was to design a government that would possess only those powers necessary to carry out the basic needs of the thirteen states (who were at that time independent nations). Each state would reserve its sovereignty to itself, while delegating a portion of its sovereign authority to the federal government. It was understood that the only way the citizens of a given state could protect their individual liberties, so recently won, was by allowing the people of that state through their local government to be the sole agent of those liberties. The only exceptions were to be those few and specific rights clearly delegated to the federal government under the contract of the Constitution.
The reverence held by the Founding Fathers for individual liberty can be appreciated by understanding the manner in which the British government granted Americans their freedom. The British government recognized each of the thirteen colonies as a free and independent state (i.e., as a separate nation in possession of its own sovereignty). With the recognition of independence, each colony became a free and sovereign state.6
It is easy then to understand why the people of the states were so reluctant to surrender their hard-earned independence and individual liberties to yet another central government. It is a matter of historical fact that at no time did the states surrender (i.e., renounce) their claim to sovereignty either directly or indirectly.
The Founding Fathers were determined to hold securely to the claim of state sovereignty. They had the insight to foresee and fear what Southerners are experiencing today. Government has within itself a strong tendency to increase its powers at the expense of personal liberties. There is always the tendency of the controlling group, element, or region to increase its own powers at the expense of the smaller group, element, or region. To protect the people from a power-hungry central government, the states retained their sovereignty and delegated, as opposed to surrendered, a very limited and explicit portion of their sovereign authority to the newly formed federal government.
American independence was not granted to a central government or to the American people en masse, but to the individual states.7 These states were determined to protect the people from the unbridled power of any central government. The primary desire of the Founding Fathers was to constru
ct a central government that would not become another threat to the liberties of the American people.
THE FORMATION OF THE ORIGINAL FEDERAL GOVERNMENT
The preamble of the Constitution states that “We the People of the United States” ordained and established the Constitution. The Constitution is the legal document that formed the federal government. But can it be maintained that the American people met and formulated the document or that the people en masse ratified it? No, in fact, only a very small number of people met and formulated it. How then can it be said that the people “ordained and established” the Constitution?
The people acting through their states sent their representatives to draft the legal document. This document was then submitted to the individual states to receive the approval or rejection of the representatives of the people.8 Each individual state, acting as the agent of the people within it, formed and established the federal government. The federal government therefore was created by the states as their agent to perform only those duties the states individually could not accomplish.
The individual states as agents of the people created the federal government. The states did not intend to create a superior institution to sit in judgment over them, but rather intended to, and in fact did, create a co-ordinate (state/federal) government. This federal government was to have only those powers the states specifically delegated to it.
We have now established that the federal government was created by the states to serve as their collective agent in areas specifically assigned to it. From this situation arises the irrepressible question: Did the states surrender their delegated rights to the central government?
DELEGATED OR SURRENDERED RIGHTS?
If the states surrendered their rights to the newly created federal government, then the South’s attempt to recall those rights in 1861 would have had no legal foundation. Therefore, it is imperative that we determine whether or not the South had a legal right to recall its delegated powers.
The term “delegate” implies the action of a superior toward an inferior or an equal toward an equal. It cannot mean the action of an inferior toward a superior in that a superior already has the power to require the inferior to submit. Therefore, the states were acting from a position of superiority or at the very least from a position of equality when they delegated powers to the newly created federal government. From this we can deduce that the strongest position that the federal government was to have in relation to the states was only that of an equal partner.
The reason the states refused to surrender their delegated rights is that there was great concern over how the states would protect their citizens from an all-powerful central government. What recourse would the states and the people thereof have if the central government usurped unto itself enough of the reserved powers to make the central government the sole judge of its own powers? The answer can be found in the Virginia Act of Ratification of the United States Constitution:
We, the delegates of the people of Virginia, duly elected,… in behalf of the people of Virginia, declare and make known, that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them, whensoever the same shall be perverted to their injury or oppression; and that every power not granted thereby, remains with them and at their will: that, therefore, no right, of any denomination, can be canceled, abridged, restrained, or modified.9
John C. Calhoun made the following statement about this resolution:
It declares that all powers granted by the Constitution, are derived from the people of the United States; and may be resumed by them when perverted to their injury or oppression; and that every power not granted remains with them, and at their will; and that no right of any description can be canceled, abridged, restrained or modified by Congress, the Senate, the House of Representatives, the President, or any department, or officer of the United States. Language cannot be stronger!10
It should be noted that the only way Virginia could be persuaded to ratify the Constitution was with the inclusion of the strong language of the first ten amendments and the even stronger language of her act of ratification of the United States Constitution. If Virginia had refused to ratify the Constitution, her action would have dealt a death blow to the efforts to secure ratification by the remaining states. In her act of ratification, Virginia drew a protective shield around the sovereign community and declared that sovereignty is derived from the people. The people acting together through their agent the state retained the legal right to recall any portion of their delegated or usurped sovereign authority “whensoever it should be perverted to their injury or oppression.”
The federal government was established by the individual states as an equal partner in a co-ordinate system of state and federal governments. The states did not intend to establish a supreme judge to rule over them. Before entering into the proposed constitutional contract, the state of Virginia (along with several other states, both north and south) declared the legal right of the sovereign community (the people of the state) to recall any delegated power if it is used in an act of oppression or injury against the people. The fact that the other states accepted the Virginia Act of Ratification without question is reason enough to maintain the assertion that they were in agreement with Virginia.
We have now seen that any government must receive its legal right to govern from the consent of the governed. If at any time the aforesaid government denies the consent of the governed, that government by its own action repudiates its legal right to exist! We have also seen that the states, as agents of the people who comprise the sovereign community, were not created as inferior appendages of a central federal government; but, quite the contrary, they existed prior to the federal government and by their own voluntary action created the federal government. The states viewed their new creation as an equal partner in a coordinate federal and state governmental arrangement. The origin of our independence, the nature of the constitutional compact, and the language of Virginia’s act of ratification all stand as evidence of the South’s legal right to be free]
We have now shown that the right of a constitutional government to issue edicts, guidelines, affirmative action orders, or to take any other such action must first be based upon the free and unfettered consent of those governed (i.e., the consent of the sovereign community). In light of history and current events, it is possible to demonstrate that the present federal government does not have, nor does it seek to obtain, the consent of the Southern people for any of its many oppressive and illegal actions. By its own actions, the present federal government has negated its legal right to govern the people of the South.
THE DESTRUCTION OF THE CONSTITUTIONAL REPUBLIC
The contrast between the original federal/state co-ordinate system envisioned and established by the Original Constitution and the current system of centralized and oppressive federalism should cause the observant Southerner (or any American) to realize that a major, fundamental change has occurred in our government. If this change was brought about by legal means, then our claim that the present federal government is illegitimate would be unfounded. But if this change was brought about without the consent of the Southern people and by use of fraud, coercion, military aggression, and other illegal acts, then the Southern people have a legal and moral right to be free of such an oppressive government.
Patrick Henry refused to attend the Constitutional Convention stating, “I smell a rat!” Why did this Southerner, who was one of the great advocates of freedom, refuse to aid in the drafting of the new federal government? His great concern was that the proposed government would become the sole judge of its own power. Patrick Henry demonstrated great political insight when he identified the fatal flaw in the proposed government.
Thomas Jefferson warned that, if the federal government was allowed the right to be the judge of the extent of its own power, it would result in a government “not short of despotism—since the discretion of those who administer
the government and not the Constitution would be the measure of their powers”11 [authors’ emphasis]. Jefferson feared that the democratic will of the people (the consent of the governed) would be usurped by a non-elected judiciary. The people of the South today are very familiar with the coercive and arrogant power of this non-elected judiciary. The Southern people have and continue to experience what Patrick Henry and Thomas Jefferson warned against.
KENTUCKY AND VIRGINIA RESOLUTIONS OF 1798
It did not take long for the South to come into conflict with those who wanted to extend the power of the federal government at the expense of personal liberty. An example of this conflict can be seen in the Kentucky and Virginia Resolutions of 1798. The author was none other than Thomas Jefferson and James Madison who used the documents to define the limits of legitimate federal power:
The South Was Right Page 19