The North went to war to “prove” that the right of secession did not exist. Then after winning the war with the South, the North required the South to surrender its right of secession in order to rejoin the Union. In order to take their place in the Union, from which the North had fought a war to “prove” that they could not legally leave, Southern states were ordered to give up the right of secession. Each Southern state, before it was allowed back into the Union, had to write into its state constitution a clause surrendering forever the right of secession.55 How could a state give up that which it never had? The very acts of the Northern government proved that the South did indeed have the right of secession.
It must be pointed out here that, although the North won the war, winning a war is not how one “proves” matters of ethics and principles. If brute force is the measure of virtue and correctness, then why do we have laws and juries? If force is the proper measure of virtue, then trial by combat would be correct and trial by a jury would be only a waste of time and money. No, the North only proved that an industrial society can defeat an agrarian society in a protracted war. Issues of morality and constitutional law cannot be judged by such a barbaric method. Only tyrants such as Adolph Hitler or Saddam Hussein would ever subscribe to that method.
Morgan L. Brand, Company D, Thirty-Fourth Alabama Volunteer Infantry. Brand was the son of a former indentured servant. He was typical of the hardy non-slaveholders who answered their country’s call to repel invaders. Brand participated in the Battle of Murfreesboro, Tennessee, and was twice wounded. He was captured and sent to Fort Delaware, the infamous camp where so many Confederate POWs died. Brand was exchanged in late 1864 and served his country until the end of the war.12 (Image courtesy of Jude W. Brand, Baton Rouge, Louisiana)
CHAPTER 9
State’s Rights and Constitutional Liberty
State Sovereignty died at Appomattox.
Supreme Court Justice Salmon P. Chase1
The worst fears of those Boys in Gray are now a fact of American life—a Federal government completely out of control.
Professor Jay Hoar of Maine2
INTRODUCTORY COMMENTS
The central theme of this book is that the Northern majority used unconstitutional, illegal, and immoral methods to change the Original Constitutional Republic into a centralized national government that it now controls. This radical and revolutionary corruption of the original government changed the very nature of that government from a voluntary compact among sovereign states to an empire established by the Northern majority via the conquest of the numerical minority of the South. Because the states were sovereign, they possessed specific “rights” as a result of their sovereign character, thus the term “State’s Rights.”
As hard as it may be to believe, there was a time when states were sovereign and the Tenth Amendment was a valid and honored part of the United States Constitution. The demise of state sovereignty leaves the citizen at the mercy of an all-powerful central government. In the following chapter we shall trace the origins of the attack upon state sovereignty and observe the struggle leading to the War for Southern Independence and the death of the Constitutional Federal Republic of the United States of America.
State’s Rights and Constitutional Liberty
According to Chief Justice Salmon P. Chase, United States Supreme Court 1864-73, state sovereignty died at Appomattox. As surprising as it may be, we agree with his assessment! Our differences are that while the Republican chief justice was celebrating the conquest of this great Southern principle, we, on the other hand, lament the death of the Constitutional Federal Republic. It is unfortunate that “conservatives” refuse to recognize the fact that the death of the principle of state sovereignty caused a radical transformation in the very nature and character of the resulting government. They insist on living in a fantasy world as if the war and Reconstruction had no effect upon the constitutional nature of the current government. Establishment conservatives have a vested interest in maintaining this fantasy. They must continue to conduct business as usual, all the while pretending that the United States Constitution guarantees a limited central government and that the limitations imposed by the Ninth and Tenth Amendments are just as valid today as they were under the Original Constitution. To do otherwise would force them into an untenable position of admitting that the original compact that created this country (the Constitution) has been illegally altered and is no longer valid for the purpose it was designed. Admitting this, they would be forced to conclude that there is nothing left to conserve. Therefore, they would have to abandon their position and acknowledge defeat.
As Southern Nationalists we must remember that there is no magic in the word “constitution.” Even communist Russia had a constitution that guaranteed human rights and religious freedom. Yet, it availed the people very little! The current United States Constitution may resemble the original, it may be titled the same, it may contain certain identical clauses, but it does not effectively limit the power of the federal government, nor does it allow the people of the states an avenue to effectively defend their reserved rights when these rights are trampled upon by an all-powerful central government. Therefore, beware of your liberties for indeed there is no magic in the word “constitution”! Absent the sovereign state, the individual citizen stands naked and alone, unprotected against the might of a centralized federal government—a government that has assumed unto itself the right to be the exclusive judge of the extent of its own powers. What monarch has ever asked for more?
MONARCHY VERSUS STATE SOVEREIGNTY
We are now centuries removed from the era of royalty and the political doctrine of the divine right of kings. It may seem strange to many Americans that there once was a very influential group of American monarchists who wanted to see some form of monarchy established in the United States. This group attempted to influence the Constitutional Convention to accept a strong central (national) government modeled after the English monarchy.3 The monarchy faction was defeated, but it still held to its monarchist principles and used every method available to invest the new government with centralized, kingly powers.4 One of the leading advocates of an all-powerful, monarchist, national government was John Adams of Massachusetts. United States senator John Langdon of New Hampshire wrote:
Mr. Adams certainly expressed himself that he hoped, or expected to see the day when Mr. Taylor, and his friend, Mr. Giles, would be convinced that the people of America would never be happy without a hereditary Chief Magistrate and Senate; or at least for life.5
Later we shall see how President John Adams used his vision of kingly powers to violently and unconstitutionally violate the civil liberties of his “subjects.”
Thomas Jefferson also recorded John Adams’ monarchist views:
Mr. Adams had originally been a Republican. The glare of royalty and nobility, during his mission in England, had made him believe their fascination to be a necessary ingredient in government. His book on the American Constitution had made known his political bias. He was taken up by the monarchial Federalist in his absence, and was by them made to believe that the general disposition of our citizens was favorable to monarchy.6
The American monarchist looked to England as a model monarchy. How strange that, only a few short years after fighting a war to gain independence from the central government represented by the British Crown, we now find Americans desiring to emulate centralized, kingly power. Thomas Jefferson observed that Alexander Hamilton had declared of the British constitution, “As it stands at present, with all its supposed defects, it is the most perfeet government that ever existed.” Thomas Jefferson declared that, “Hamilton was not only a monarchist, but a monarchist bottomed on corruption.”7
In his introduction to the 1868 edition of The Federal Government: Its True Nature and Character, by Abel P. Upshur, C. C. Burr describes Hamilton and his monarchist followers thusly:
General Hamilton, one of the principal writers of the Federalist, was undoubtedl
y at heart a monarchist. On more than one occasion he plainly avowed himself such. In the Convention which framed the constitution he exerted his commanding influence to impart centralized, consolidated, or monarchical powers to the Federal Union. But, signally failing in this, in his subsequent interpretations of the Constitution he did what he could to bend the instrument to suit his views. Judge Story and Chief Justice Kent, and earlier, Chief Justice Jay, belonged to the same political party as General Hamilton. They were Federalist, and so odious did this party become to the American people, that it was driven out of power at the expiration of old John Adams’ single presidential term in 1800.8
This assessment of Hamilton as a monarchist attempting to form an all-powerful central government is echoed by a contemporary political scientist:
Hamilton’s proposed scheme of government resembled that of eighteenth century Great Britain. … Thus, the senate, the executive, and the judiciary would consist of officials not subject to periodic elections. Hamilton’s objective was to strengthen the central government at the expense of the states. He claimed that they had become obsolete and that their preponderance over a more efficient and powerful nation could no longer be justified.9
The influence that the American monarchist had upon certain groups of citizens can be seen in a portion of a letter sent to President Adams:
We, the subscribers, inhabitants and citizens of Boston, in the State of Massachusetts … beg leave to express to you, the Chief Magistrate and supreme ruler over the United States, our fullest approbation of all the measures, external and internal, you have pleased to adopt, under direction of divine authority.10
C. C. Burr stated that “Any one can see that the men who could address the President after this fashion, had a great deal less respect for the restraints and limitations of a written Constitution, than for the will and force of individual power.”11 Even though the monarchists were defeated in the Constitutional Convention, they never ceased their efforts to give the United States a strong, centralized, consolidated, federal government. They ceased their labors as open monarchists and renewed their efforts as consolidationists (i.e., Federalists), years later as Radical Republicans, and today as liberals. The doctrine of state sovereignty stood as a barrier to the dreams of the federal monarchists. The And-Federalists knew that the only way a central, national government could ever be established was at the expense of the sovereign states. At this very early stage of United States history Southerners knew that the demise of state sovereignty would mean the death of American liberty.
WERE THE STATES SOVEREIGN?
One of the many arguments used against the Jeffersonian school of limited central government, and later against secession, was that the states were never sovereign. The Yankee president Abraham Lincoln even went so far as to claim that the Union preceded the states. These arguments were answered in Chapter 8 and will not be repeated here. We do feel it necessary to document examples of the states exercising their sovereign authority as evidence of their status as sovereign states. An explanation of what is meant by the term “sovereignty” may be useful at this point. The state government is not sovereign, nor is any citizen individually. By the term “sovereign state” we refer to the citizens of the state collectively. John C. Calhoun described the state as the “sovereign community.” The state, as the agent of the people, exercises sovereign authority by the consent of those who created it (i.e., the people of the state). A state, as the agent of the sovereign community, may delegate a portion of its powers to another government, but it can not delegate a portion of sovereignty. Sovereignty, like chastity, is not transferable or divisible.
Prior to the signing of the Declaration of Independence, the colonies had within their control the right of colonial legislation. Many of the colonies had removed their royal appointed governors, and Virginia had gone so far as to declare her independence in May of 1776! All these events were the acts of a sovereign nature, with no reference to a higher governmental authority. When, on July 4, 1776, they declared their independence it was a joint declaration announcing to the world that the thirteen American colonies were now free and independent states (note the plural), not in the aggregate as one nation but individually, yet acting jointly as may best secure for all the blessings of liberty. So from their separate and independent acts prior to and at the time of their declaration of independence, these colonies, now states, acted separately and independently of each other without reference to a superior governmental agency and in their capacity as sovereign entities.
During the Revolutionary War they continued as sovereign states. The monarchist school of thought attempts to advance the theory that the American Declaration of Independence created a nation-state by the action of the sovereign will of the American people in the aggregate. The following examples will demonstrate that the people of the states did not contemplate the establishment of a national government by their joint declaration of independence on July 4, 1776.
While jointly engaged in a common war with the British Crown, and while the Continental Congress was in session, the sovereign states of New York and Vermont almost declared war against each other! Their dispute created tensions so high that in 1784 Massachusetts adopted a formal resolution declaring her neutrality. New York passed a resolution stating that the state was prepared to “recur to force.” Vermont’s governor John J. Chittenden declared that his state did not desire to “enter into a war with the State of New York.” He also advised Congress and the other states to “observe a strict neutrality” in the event of hostilities between the two states.
Another example of a state exercising its sovereign authority during the Revolutionary War was Virginia’s declaring herself bound by a treaty with France then under consideration in the Continental Congress. Virginia thought the treaty to be so important that she did not wait for its slow progression through Congress but intervened via her state legislature and unilaterally bound herself to the treaty.12 These examples demonstrate that the states did not surrender their sovereignty by their joint declaration of independence, but retained and exercised their sovereign authority.
At the close of the Revolutionary War, did His Britannic Majesty recognize the independence of the United States alone according to the e pluribus unum model (i.e., as one nation)? No! Each state is named as a free and independent state in the Treaty of Paris signed by the representatives of the British Monarch.
Additional evidence demonstrating the sovereign nature of the individual American states can be found in the language of the Articles of Confederation. In Article II the states make known to all parties that:
Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States in Congress assembled.
Language can not be clearer. There is no room to question the states’ intent to maintain their individual “sovereignty.” The states acceded to the Articles of Confederation as sovereign entities and reserved all powers unto themselves as separate and independent states. It is also instructive to observe the relationship between these sovereign states in Congress under the Articles of Confederation. Each state voted as a unit, with an equal vote regardless of the size of its population or territory. Why did the states treat each other as equals? The answer is simple if we understand the principle of state sovereignty. How else could sovereign states treat each other absent a treaty, compact, or constitution mutually agreed to that plainly altered international convention? In international relations, when a league between sovereign nations is established, each nation is presumed equal unless the presumption has been specifically altered and agreed to by all parties to the league.
From the preceding discussion we can see that the states exercised their sovereign authority prior to their joint declaration of independence, during the American War for Independence, their sovereignty was recognized by the British Monarch by acknowledging their independence, and the states m
aintained their sovereign status under the terms of the Articles of Confederation. Now arises the question: Did these sovereign states surrender or renounce state sovereignty by the ratification of the United States Constitution?
The Constitution clearly established a different government from the one which operated under the Articles of Confederation. The preamble to the Constitution boldly states that “We the People of the United States …” The monarchists, Federalists, consolidationists, and others favoring a strong central federal government have seized upon these words as evidence that the people of America formed a national government, superior to the states. If this assertion is correct, then it follows that sovereign authority has shifted from the states to the central government. Did the people of America hold a plebiscite and, by virtue of the democratic principle of majority rule, vote to establish the federal government as the national and supreme government of the United States? The answer, as any school child should know, is a simple no. The Constitution was proposed by representatives of the individual states and ratified by the states, becoming binding only on those states which so ratified it. In other words, the people of the United States as a collective body did not participate in the process, the states participated in their independent and sovereign role as the elected agent of the people of their respective states. In their acts of ratification, many states specifically reserved the right to recall their delegated sovereign powers should those powers be used by the federal government to encroach upon the rights and liberties of the people. This reservation of rights is another example of the states exercising their sovereign authority. From these examples we can see that the states did not renounce their sovereign authority by ratifying the Constitution.
The South Was Right Page 26