So this guy named Pete Spiliakos says I haven’t been totally consistent on nullification and interposition. Now I’d say that nullification and interposition are two different things. The first is the alleged legal rights of states to suspend the enforcement of any law a state government feels to be unconstitutional within the borders of that state. The second is the power of the state government to protect their citizens from radical violations of their rights by the federal government. I know they sound similar, but they could hardly be more different. I’m part of the cause of the confusion. Let’s look at what has been said:
That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them. That was me in the Virginia Resolution.
This right of interposition, thus solemnly asserted by the State of Virginia, be it called what it may—State-right, veto, nullification, or by any other name—I conceive to be the fundamental principle of our system, resting on facts historically as certain as our revolution itself, and deductions as simple and demonstrative as that of any political, or moral truth whatever; and I firmly believe that on its recognition depend the stability and safety of our political institutions. That was John Calhoun citing me in his Fort Hill Address.
It has been asked whether every right has not its remedy, and what other remedy exists under the Govt. of the U. S. agst. usurpations of power, but a right in the States individually to annul and resist them.
The plain answer is, that the remedy is the same under the government of the United States as under all other Govts. established & organized on free principles. The first remedy is in the checks provided among the constituted authorities; that failing the next is in the influence of the Ballot-boxes & Hustings; that again failing, the appeal lies to the power that made the Constitution, and can explain, amend, or remake it. Should this resort also fail, and the power usurped be sustained in its oppressive exercise on a minority by a majority, the final course to be pursued by the minority, must be a subject of calculation, in which the degree of oppression, the means of resistance, the consequences of its failure, and consequences of its success must be the elements. That was me in the Notes On Nullification explaining what a state could do if it (by which we really mean its citizens were being oppressed by the federal government.
So doesn’t it sound like I sometimes agree more with Calhoun than myself? No. Look at the context here. In the Virginia Resolution I was talking about the Alien and Sedition Acts. The Sedition Act made it a crime to criticize the federal government. This obviously violated the Constitution. You don’t have to have helped write the Bill of Rights (which I did) to recognize that the law is a clear violation of the First Amendment. But the Sedition Act did more than just violate the Bill of Rights. It would have been a radical violation of the rights of American citizens even if there had been no First Amendment. How can citizens deliberate, in a democratic and republican manner, if the government in power can punish the people and the representatives of the people who criticize the government too effectively?
What does the Sedition Act remind you of? I know what it reminds me of. It sounds like the beginning of “ a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism.” I did write of the states as “parties” to the Constitution in the Virginia Resolution, but don’t think of each state relating to the federal government’s laws the same way the Supreme Court relates to congressional statute. When I’m writing about interposition, I’m not talking about legally striking down a federal law. I’m talking about a state acting relative to the federal government the way the colonies related to the British Government during the Revolution. Interposition is a state stepping in to protect its people he way the governments of the colonies stepped in to protect the rights of the American people in 1775-1776. The state doesn’t have the legal or constitutional authority to interpose, but no group of people have the obligation to allow themselves to be governed tyrannically. In the case of the Virginia Resolution (as in the case of the Revolution) the state (or colonial) governments seemed the best vehicle for stopping oppression.
And we didn’t forcibly resist the Sedition Act. We didn’t interpose what I still think was plainly unconstitutional law that violated fundamental freedoms. Why not? Well, let us read what the Declaration says, “Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.” That sounds about right. If the Federalists had continued and extended their oppressive policies, if we democrats and republicans had lost the elections and if the Supreme Court allowed the federal government to violate the rights of the people, then interposition by the state of Virginia might well have been justified. But if the state of Virginia had interposed to prevent the enforcement of federal law, it wouldn’t have been like Marbury v. Madison. It would have been like Lexington and Concord.
Now comes this John Calhoun. I remember back in 1810-1816 when he had been more nationalist than me. He had thought that the Constitution allowed the Congress to appropriate money for internal improvements. I thought that wasn’t among the Constitution’s enumerated powers. The point isn’t to argue that Calhoun is a hypocrite – though I have never known a more self-serving, falsely pious, fantasist in my life. The point is that there will always be disagreements about constitutional interpretation. These disagreements can be legally handled by public debates, elections, the actions of the elected branches of the federal government and the federal courts. There is no, and I have claimed no, legal power of interposition. Legality has nothing to do with interposition (though its ultimate purpose might be to restore a better understanding of the Constitution.) If you try interposition, you better be right about the underlying constitutional question because you aren’t risking and adverse court decision. You are risking the hangman’s rope. That might be okay. There are some things worth risking the hangman’s rope over. I tend to think that the protective tariff isn’t one of those things, but it is Mr. Calhoun’s neck after all.
But don’t let anyone fool you. If you are trying “nullification” of federal laws as a way of pursuing your policy preferences on the normal issues of the day, you are going down the path to bloody disaster. Either you will destroy your state, yourself and your followers or you will destroy your country and the Constitution you say you are protecting. Don’t say I didn’t warn you.
April 29th, 2012 | 1:59 pm
Constitutional questions always boil down to one’s perspective as either a citizen or a subject.
Calhoun may have been a hypocrite or he may have had an epiphany? Following his silly embrace of the nat’l road’s scheme (and when he learned there would be no federal dollars for Southern roads) he appears rather consistent in his objection to future usurpations of the general gummint.
Perhaps Madison is the champion of political hypocracy. Dr. Clyde Wilson refers to him as “…the father of every trimming and time-serving politician who ever played the middle against both ends, obscured the real issue with verbiage, and bent the Constitution to fit his own abstract conceptions of gummint.”
“If you try interposition, you better be right about the underlying constitutional question because you aren’t risking and adverse court decision.You are risking the hangman’s rope. That might be okay. There are some things worth risking the hangman’s rope over. I tend to think that the protective tariff isn’t one of those things, but it is Mr. Calhoun’s neck after all.
..begs the question, where, exactly, do you draw the line, what act of the federal regime would require you to take up arms?
April 29th, 2012 | 2:19 pm
Bob, that Calhoun’s conversion from hyernationalist to hyper states rights (or from more nationalist than Madison to more anti-nationalist than Madison) happened as his presidential ambitions collapsed might be telling.
“begs the question, where, exactly, do you draw the line, what act of the federal regime would require you to take up arms?” I don’t think there is a final answer to that question. The Declaration posits some ways to think about it and so does Notes on Nullification.
“Should this resort also fail, and the power usurped be sustained in its oppressive exercise on a minority by a majority, the final course to be pursued by the minority, must be a subject of calculation, in which the degree of oppression, the means of resistance, the consequences of its failure, and consequences of its success must be the elements.” I like this way of thinking better than Calhoun’s but I don’t think it is comprehensive and accounts for every possiblity.
April 29th, 2012 | 4:33 pm
“Should this resort also fail, and the power usurped be sustained in its oppressive exercise on a minority by a majority, the final course to be pursued by the minority, must be a subject of calculation, in which the degree of oppression, the means of resistance, the consequences of its failure, and consequences of its success must be the elements.”
If the ‘consequences’ of resistance to a unlawful usurpation of the general gummint is a consideration, you’ve already lost your liberty.
The dichotomy exists in our understanding of the relationship between the state and the citizen. In general terms, I interpret your remarks as those of a gentleman who believes our elected leaders “…are drivers of public opinion, duty-bound to guide it into channels of wisdom, else all stability is lost.”
On the other hand I have the notion that our elected reps are our ‘servants’, that they represent the opinion of the ‘community’. It is best, I think, to keep in mind that Calhoun, as Dr. Wilson illustrates, was an aristocratic Southern man who acted on his hierarchical and democratic obligations to those he represented while his opponents were northern elitist, bourgeois capitalists. One side saw the general gov’t as a means to intervening in the market on their behalf, the other, agrarians who were quite comfortable with that same gov’t utilizing the virtues and principles of republicanism. It is obvious that Calhoun better grasped the fallen nature of man, the ever dangerous and potentially corrupt power of the state.
April 29th, 2012 | 6:11 pm
“If the ‘consequences’ of resistance to a unlawful usurpation of the general gummint is a consideration, you’ve already lost your liberty.” Well, the Americans of 1775-1776 showed forebearance and seem to have taken into account their chances of success (though they were willing to bear a considerable risk of failure), and liberty survived. There is a decent point in there somewhere about being so jealous of liberty that any usurpation of liberty carries the responsibility of revolt regardless or prudential concerns for success. Though it seems to me that in the context of the early 1830s, such a theory of nonprudential revolutionism justifies Nat Turner rather than John Calhoun.
“his opponents were northern elitist, bourgeois capitalists.” I’ve heard Andrew Jackson called lots of things, but not this.
“One side saw the general gov’t as a means to intervening in the market on their behalf, the other, agrarians who were quite comfortable with that same gov’t utilizing the virtues and principles of republicanism.” The second part of the sentence does not strike me as an accurate description of the Calhounian approach to territorial policy, though the first part is a tolerable (though very hostile) description of Calhoun’s policy preferences back when Calhoun had hopes of becoming President of our country.
April 29th, 2012 | 8:24 pm
Well, Pete, we knew some time ago that you ought to be the policy/rhetoric go-to-guy for whoever won the Republican nomination, but that you ought to also be the spokesman for James Madison’s ghost, that is a surprise!
Seriously, though, this is a keeper. I’ve never wanted to wade into the “interposition” thing until now.
April 29th, 2012 | 9:00 pm
“begs the question, where, exactly, do you draw the line, what act of the federal regime would require you to take up arms?” I don’t think there is a final answer to that question. The Declaration posits some ways to think about it and so does Notes on Nullification.”
Bull Shit. The answer to the require answer is: Never.
Neither the Declaration nor the Notes on Nullification are relevant. But since you guys are just being history nerds in a way that I approve of… I would say that the situation leading up the embargo and the embargo itself give partial answers to the question.
What act of the federal regime would require you to take up arms?
Well lets say you get involved with privateers, there is some treaty, and now you are a Pirate… or lets say you get impressed by Great Britain…or France… Or lets say Jefferson’s solution to the problem of Great Britain and France is an embargo and the smuggling prices are too good to pass up…so you take up arms against the pesky gun boats and revenue cutters and also bribe the Gov of Mass to give you flour quotas…all of which by the way happened.
April 29th, 2012 | 9:33 pm
Amusing in a History nerd kind of way. I don’t think it is necessary to make Madison correct on everything, or Calhoun wrong on everything. I happen to like points made by both.
“begs the question, where, exactly, do you draw the line, what act of the federal regime would require you to take up arms?” I don’t think there is a final answer to that question.
Bull Crap. There is no “require” to even think about. No act of the federal regime would require me to take up arms. Unless I am in the Army and we have declared war. Then I have a duty. Or maybe if we declare war and there is a real threat. Or maybe if I decide to go rogue and rob banks, then I am almost certainly going down Ruby Ridge/Hollywood style. But obviously I can choose to not take up arms either for or against the federal regime. Almost all situations where I am taking up arms against the federal regime, more or less involve being on the wrong side of the law. Maybe some sort of strange fate puts me there, then I need no greater justification than self-preservation and the defense of self regardless of past poor choices. Moral justifications for being an outlaw are I suppose part of the american experiment. I am pretty sure it is a rationalization. But being a rationalizer by nature, I like to be honest with myself about it. In all likelyhood most pirates probably believed they were being more honest to the calling of loot than the damn privateers. But seeing as how we aren’t talking about the Navy of the founding, and I am unlikely to be pressed into service by the British or the French and forced into being a privateer…the answer is an unequivocal never.
Interesting in my opinion that you guys are just talking about The Embargo.
April 30th, 2012 | 9:02 am
Thank you for your comment, Mr. Lewis. Had you been taking air during the revolutionary period of our history, you’d be a Tory; not that there’s anything wrong with Tories. Re: the misuse of federal power, and the appropriate resistance to same, you may find this article of interest?
http://www.firstthings.com/article/2008/09/001-waco-a-massacre-and-its-aftermath–12
While I’ve had my differences with First Things over the years, I’ve always appreciated the accuracy and courage of that article.
Pete, I don’t know that I can agree with you re: the prudence of the revolutionaries of ’76. They seem as much a coterie of firebrands as their Southern descendants not eight-eight years later. It seems the central state, unless it is limited by republican doctrine and anchored in virtue, has a way of making revolutionaries of the dis-empowered.
And, finally: “There is a decent point in there somewhere about being so jealous of liberty that any usurpation of liberty carries the responsibility of revolt regardless or prudential concerns for success.”
So my questions are, how ‘jealous’ of liberty should we be and where is that ephemeral line the gummint must cross in order to cause a revolt?
April 30th, 2012 | 1:54 pm
Madison placed himself in the ridiculous position of holding that treasonous rebellion was fine when he approved of the cause, but a terrible thing when he didn’t.
April 30th, 2012 | 7:27 pm
Carl, thanks, but I don’t think the post comes to terms with the different kinds of spin in the Virginia Resolution and Notes on Nullification. If I were to do a V.2 it might include a mea culpa or at least a hard headed explanation for the tensions between the two (maybe this weekend.)
Gene, “Madison placed himself in the ridiculous position of holding that treasonous rebellion was fine when he approved of the cause, but a terrible thing when he didn’t.” Assuming for these purposes that treason is defined by the government rather the rebel, we are left with three possibilities that I see:
a) Rebellion against the government is never justified regardless of the circumstances.
b) Rebellion against the government is always justified regardless of the circumstances.
c) Rebellion against the government is justified under some circumstances but not others (though there might be great disagreement about what those circumstances might be.)
The first two strike me as consistent though not any admirable kind of consistent. The third does not strike me as ridiculous and I doubt it would have struck Washington, Jackson, Lincoln, Adams, Madison, or even Calhoun as ridiculous (whatever else they might have disagreed on.)
Bob, “Pete, I don’t know that I can agree with you re: the prudence of the revolutionaries of ’76. They seem as much a coterie of firebrands as their Southern descendants not eight-eight years later.”
Well, I can’t speak for what you agree with, the Founders of 1775-1776 faced taxation without representation, the suspension of representative institutions, and the suspension of normal civilian trials all prior to the Declaration of Independence. The seceders of 1860-1861 faced the constitutional election of a President who opposed the passage of a law to establish slavery in all the territories. I can hardly think of more different cases.
“It seems the central state, unless it is limited by republican doctrine and anchored in virtue,” I’m not sure how it t is republican doctrine to repudiate the Northwest Ordinance (or alternatively assert that the Confederation government had greater power of the territories than did the federal government under the Constitution) and the Missouri Compromise and use those repudiations as a pretext for secession. The virtue of splitting the US after failing to secure congressional majorities to expand slavery into the territories is also obscure.
“So my questions are, how ‘jealous’ of liberty should we be and where is that ephemeral line the gummint must cross in order to cause a revolt?”
I don’t see how questions of prudence can be wisely avoided here (including the nature of the offense(s), the duration or expected duration, chances for peaceful resolution, chances for success in appeals to arms and other considerations that I’m not thinking of.) my sense is that one should probably have a better reason than to establish a slavery-based republic because one feels that the institution of slavery is in relative decline in one’s own country.
April 30th, 2012 | 7:58 pm
Pete, I remember we had this or a similar discussion some months ago, which following said discussion my employment at First Things was terminated. Well, I’m getting rather nostalgic!
You are a smart fellow, consequently I’m confused as to why you won’t answer my simple inquiries rather than busying yourself moving the goal posts? In the spirit of a meaningful dialectic let me ask again:
1.How ‘jealous’ of our liberty should we be?
2. At what point, morally/politically speaking, does one engage in a resistance to the usurpations of the central gummint?
You’ll note that the term ‘slavery’ does not appear in either question. However, should you desire we can cover that ground, one more time. My interests lie in an analysis of the ground of liberty and the tension existing between the most elemental constitutional entity, the state, and the cult of the American central gov’t, the so-called ‘Union’, and the place of the citizen/subject(?) in the tension between the state and the federal gummint.
BTW, that First Things essay on Waco is a masterpiece of journalism. Anyone reading would benefit on a number of levels.
May 1st, 2012 | 12:31 am
Madison put himself in the ridiculous position of having the internal contradictions of his “dual federalism” (or “dual sovereignty”) exposed as contradictions — not so much by Calhoun as by the passage of time and the course of events. (This was what John Taylor of Caroline had called his “didactick federalism.”)
Calhoun did over-theorize his rejection of Madison’s views (a bit). Taylor had it about right.
May 1st, 2012 | 9:59 am
Dr. Stomberg, I’ve always enjoyed your important work and thank you for the above ‘comment.’ Please feel free to join in the discussion.
May 1st, 2012 | 8:12 pm
Bob, I can’t give a complete account of when violent revolt might be justified since there are multiple, simultaneous factors at play and the stakes are life and death (including the lives of people who might have no opinion of, or interest in, the matters under dispute – and there will always be matters under dispute.) So I don’t think one can wisely avoid considerations of practical statesmanship that takes circumstances, proportionality, chances of peaceful redress, etc. into account. In some cases the moral case for violent rebellion might be sound (as in the case of slaves), but prudential considerations for chances of success might cut in the opposite direction. The case for rebellion in other cases of perceived unwarranted expansions of government power seems more doubtful even if the legal case against the expansion is sound. Madison thought that federal spending for domestic infrastructure projects was unconstitutional. Just the same, someone who takes up bloody rebellion on the pretext of objecting to the interstate highway system is a lunatic rather than an exemplar of republican virtue even if he is right about the underlying issue.
“busying yourself moving the goal posts.” The goal posts are where they have been since 1776. To wit, “Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But 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.” I don’t think that is the last word on the subject, but it is a good starting point for considering when violent revolution is justified.
“At what point, morally/politically speaking, does one engage in a resistance to the usurpations of the central gummint?” The question works much better if you remove the word “central.” For the rest, see above.
“You’ll note that the term ‘slavery’ does not appear in either question.” We were discussing what violations of liberty might justify revolution, and, rather more specifically, when revolution might be justified against the federal government. To pick a relevant example, a violent rebellion to set up a slavery-based republic strikes me as unjustified and sheds some light on the greater question of what kind of jealousy of liberty might justify violent revolution.
I can understand why someone might object to the replacement of the Articles with the Constitution. I can understand why someone might wish that we had adopted a different Constitution. I don’t know why someone would prefer, as accurate, the interpretation of the Constitution that is offered by John Taylor to the extent that it differs from the common understanding of both Federalists (Madison, Hamilton) and Anti-Federalists (Henry, Samuel Adams, Federal Farmer) during the ratification that the Constitution ended undivided state sovereignty and foreclosed legal state-level secession at will
May 1st, 2012 | 9:28 pm
Oh my, Pete, I don’t think even the flawed Constitution “ended undivided state sovereignty and foreclosed legal state-level secession at will..”
Really?
You might want to check the ninth and tenth amendments to the Constitution.
“Just the same, someone who takes up bloody rebellion on the pretext of objecting to the interstate highway system is a lunatic rather than an exemplar of republican virtue even if he is right about the underlying issue.”
Pete, this is just the example and time Jefferson was referring to in his argument that in order to maintain that unique American republicanism, we would have to engage in ‘revolution’ every generation or so. The idea of federal largesse has RUINED this country financially. How much BETTER would it have been for true Americans to hang a few federal lawmakers to illustrate the fact that the general gummint will FOREVER be limited, defined, and restricted in it’s avarice. Peter, you’ve fallen victim to modernity!
Mr. Lincoln and his acolytes can say all they want about the ‘illegality’ of secession (imposed by the force of arms, not by political negotiation) but if that’s the case, what, in heaven’s name, will stand against the general gummint in her usurpations?
From Stromberg’s “Republicanism, Federalism, and Secession”(Secession, State, and Liberty, David Gordon, editor, Transaction Press) we have Mr. Jefferson’s comment, to wit, “..the several states composing the United States of America are not united on the principle of unlimited submission to their general government; but that by compact..they..delegated to [that government] certain definite powers, reserving…the residuary mass of rights to their own self-government.” Peter, we have a MORAL obligation to restrain the avarice of the general gummint, even Madison in his federal parsimony agreed with that.
We are never subjects of the general gummint; we are always citizens, and obligated to all that that entails.
Your opening paragraph indicates your agreement that there are reasons for rebellion against the general gummint.
Good, I agree.
I don’t think your threshold of rebellion is the same as mine, but hey, I appreciate the fact that you have one, and perhaps, someday you’ll develop a criteria for rebellion-secession. There is nothing holy or sacred about the general gummint of the United States, in fact one might argue that the clowns that have been running the nat’l gummint have not only screwed things up, badly, but, over the past several decades, they’ve gotten a lot of good Americans killed and wounded for no good reason.
May 2nd, 2012 | 7:59 pm
Bob, “Oh my, Pete, I don’t think even the flawed Constitution “ended undivided state sovereignty and foreclosed legal state-level secession at will..” You don’t need to tell me. you need to tell Patrick Henry, Federal Farmer, the New York Anti-Federalists, Hamilton, etc.
“You might want to check the ninth and tenth amendments to the Constitution” It would strike Madison and Henry as surprising that the Bill of Rights supplied a right of state at-will secession where there had not been one before (and they had agreed that no such right existed under the Constitution.)
“this is just the example and time Jefferson was referring to in his argument that in order to maintain that unique American republicanism, we would have to engage in ‘revolution’ every generation or so. The idea of federal largesse has RUINED this country financially. How much BETTER would it have been for true Americans to hang a few federal lawmakers ”
Jefferson was writing about a revolt against a state government and before the French Revolution. I don’t recall a similar blithe statement by Jefferson regarding (violent) revolution that comes after Napoleon taking power. Maybe he made such a later statement, but if he had, shame on him. It should also be noted that, since controversial polices are likely to have partisans on several sides, settling disputes by violence would more likely result in civil wars or coups d’état than events where a few federal legislators get hanged and everybody else goes happily on along.
“Mr. Lincoln and his acolytes can say all they want about the ‘illegality’ of secession” Andrew Jackson, Patrick Henry and James Madison (great southern men all) were not “acolytes” of Lincoln – though Lincoln agreed with them on this point.
“There is nothing holy or sacred about the general gummint of the United States” That statement doesn’t seem quite right. How about “There is nothing holy or sacred about gummint.” Much better. So now back to when one might be justified in revolt against one’s government…
“Your opening paragraph indicates your agreement that there are reasons for rebellion against the general gummint.” When have I (or Madison or Lincoln, or Jackson) denied that revolt might be justified depending on the circumstances (though they might differ on the circumstances.) To pick a nonrandom example, slaves would be justified in revolting against a government that enslaved them.
May 3rd, 2012 | 10:10 am
[...] s); })(); Share on Tumblr Writing as if he were James Madison Pete Spiliakos, in his recent article James Madison Keeps It Real On Nullification, (an excellent article I urge you to read) made an interesting argument stating that nullification [...]
May 3rd, 2012 | 5:29 pm
“To pick a nonrandom example, slaves would be justified in revolting against a government that enslaved them.”
I believe we’re going over plowed ground, but because it’s important let’s make a couple of points:
1.I agree, the African slaves had every right to revolt ‘against the government that enslaved them.’ That would be the United States of America, btw.
2. Perhaps most telling is that other than the aforementioned Nat Turner and a couple of others, there was no such ‘revolt’ in the African-American community. I would be eager to read any blog you wrote on why there was never an organized revolution/uprising among the blacks, Southern or otherwise.
Pete, Madison and Hamilton asserted in the Federalist that while they were opposed to secession the general gummint had no authority to coerce a seceding state.
Whereas Lincoln, a man who had abandoned the founding principles related to a federated, constitutional republic in favor of those pernicious principles associated with consolidation and centralization, had no problem in directing a total war against not only the heroic armies of the South but southern women, children and other non-combatants while his troops engaged, almost at will, in rapine, plunder, and the senseless and immoral destruction of private property in order to place his civilian enemies in reduced circumstances, including starvation.
In entering into a compact that formed the general gummint, no state, at any time, ceded its sovereignty or independence to that general gummint. Nowhere in the Constitution of the United States is ‘secession’ of (a) state(s) prohibited.
And, let’s be very clear, we have a vibrant TRADITION regarding secession where the so-called ‘American Revolution’ was, in reality, an act of secession, while the much loved Declaration of Independence is a document enumerating the reasons for and necessity of the secession of the free and independent American colonies from Great Britain. If you want I can explain the differences but I believe you already understand them.
A free and self governing people in a federated constitutional republic have the right, by state, to secede. This is a long held American tradition, though it has not been much taught in American schools since the ‘late unpleasantness,’ given the triumph of those anti-American forces of consolidation.
May 3rd, 2012 | 7:48 pm
Bob, well I agree on the first (though it would also, of necessity also be a revolt against those states where slavery was legal – which in 1789 was almost all of them.) Given the proportions of the slave population and the ability of the slave-owning state government to organize military power (shown in – but not only in – the Civil War) and other factors I’m not even thinking of, the collective action problems of organizing a slave revolt would be enormous and the chances of success (forming a separate viable polity? winning recognition of some kind of political equality?) would seem low and the odds of worsening the situation high. I suspect that the obstacles to a successful widespread revolt are actually even higher than my comments here indicate.
“Pete, Madison and Hamilton asserted in the Federalist that while they were opposed to secession the general gummint had no authority to coerce a seceding state.”
When discussing the case of a state that has already ratified the Constitution, the only thing in the Federalist that I can remember that seems to bear on this point is in Federalist #46 “If an act of a particular State, though unfriendly to the national government, be generally popular in that State and should not too grossly violate the oaths of the State officers, it is executed immediately and, of course, by means on the spot and depending on the State alone. The opposition of the federal government, or the interposition of federal officers, would but inflame the zeal of all parties on the side of the State, and the evil could not be prevented or repaired, if at all, without the employment of means which must always be resorted to with reluctance and difficulty.” the only implication I can draw from that is that the federal has the authority to enforce federal laws over the opposition of the state government but would have difficulty in doing so. The rest of the essay consists of prudential (but not legal reasons) for why the federal government is less of a threat to impinge on the powers of the state government than vice versa.
The most direct statement of Madison on secession was in his letter to Daniel Webster “I return my thanks for the copy of your late very powerful Speech in the Senate of the United S. It crushes “nullification” and must hasten the abandonment of “Secession.” But this dodges the blow by confounding the claim to secede at will, with the right of seceding from intolerable oppression. The former answers itself, being a violation, without cause, of a faith solemnly pledged. The latter is another name only for revolution, about which there is no theoretic controversy.”
“Whereas Lincoln, a man who had abandoned the founding principles related to a federated, constitutional republic…” Patrick Henry would say that we stopped being federated (in the old, pre-US Constitution sense of the term) with the adoption of the Constitution. Madison, Jackson, etc. would have agreed with Henry on the secession part. You might argue that the founding principles were abandoned by the founders (and some have), but your problem starts with the Constitution rahter than with Lincoln.
“In entering into a compact that formed the general gummint, no state, at any time, ceded its sovereignty or independence to that general gummint.”
John Marshall on that subject “It has been said that they [the states]were sovereign, were completely independent, and were connected with each other only by a league. This is true. But, when these allied sovereigns converted their league into a government, when they converted their congress of ambassadors, deputed to deliberate on their common concerns, and to recommend measures of general utility, into a legislature, empowered to enact laws on the most interesting subjects, the whole character in which the states appear underwent a change”
Now Marshall was a Federalist delegate to the Virginia ratifying convention, but the leader of the opposition at the very same convention agreed with Marshall that the states were giving up undivided sovereignty in ratifying the Constitution.
” Nowhere in the Constitution of the United States is ‘secession’ of (a) state(s) prohibited.
Madison is 1787 “A sanction is essential to the idea of law, as coercion is to that of Government. The federal [Confederation] system being destitute of both, wants the great vital principles of a Political Constitution… As far as the Union of the States is to be regarded as a league of sovereign powers, and not as a political Constitution by virtue of which they are become one sovereign power, so far it seems to follow from the doctrine of compacts, that a breach of any of the articles of the confederation by any of the parties to it, absolves the other parties from their respective obligations, and gives them a right if they chuse to exert it, of dissolving the Union altogether.” The Constitution (which as Marshall, Jackson, Henry, etc. recognized as not a league), by being a Constitution and not a treaty, foreclosed legal at-will secession under the understanding of those who wrote it, supported it and opposed it at the time.
“And, let’s be very clear, we have a vibrant TRADITION regarding secession” Actually, since the adoption of the Constitution, history shows that we have a vibrant history of deterring or defeating threats of at-will secession.
May 3rd, 2012 | 8:33 pm
So you’re saying the African slaves preferred slavery over fighting for their freedom?
Peter, I sense a movement here!
“And, let’s be very clear, we have a vibrant TRADITION regarding secession” Actually, since the adoption of the Constitution, history shows that we have a vibrant history of deterring or defeating threats of at-will secession.
Yes, yes, but military might doesn’t negate the right of secession, it only means the consolidators with overwhelming military strength won.
Further, you have a point re: the Constitution though you go too far. The Articles of Confederation, in terms of a federated, constitutional republic is a far better document. However, it takes a low man to pervert the obvious and straight forward limitations of the general gummint provided in the US Constitution (and many politicians over the years have done exactly that). The point that I sense is that you are beginning to see how things changed with the advent of nationalism and industrialism, the Lincoln regime, vs. the doctrines of the olde republic. You may, if you wish, rationalize these fascinating historical events but my point is that the old Americanism structured and protected by the doctrines inherent in the idea of a federated, constitutional republic provided not only for the state, but the individual the best chance of existing in a reality that mimics the freedom that God intends. In that sense, and understanding the limitations of the constitutional republic and the necessity for men of good will, we bear witness to that political system that provides the best opportunity for us to live the life God intended for human beings.
“Now Marshall was a Federalist delegate to the Virginia ratifying convention, but the leader of the opposition at the very same convention agreed with Marshall that the states were giving up undivided sovereignty in ratifying the Constitution.”
Absolutely not. Common sense dictates that men who had just fought the greatest army in the world and beaten them would cede sovereignty to the general gov’t. Actually, as Jeffrerson points out they were ‘jealous’ of the hard won freedom of their STATE and would never have tolerated the usurpations of the general gov’t.
These Americans unlike our contemporary twits were suspicious of the general gov’t usurping their ‘rights’ that’s why they ENUMERATED the powers of the central state and left ALL other powers to the states.
“…your problem starts with the Constitution rahter than with Lincoln.” You’re right, give me the old Articles of Confederation anytime. But, even with the Constitution, had they hung any number of Senators and Congressmen that should have nicely restrained the libido dominandi that always infects the political classes. Traitors should always be forced to publicly suffer for their actions.
May 4th, 2012 | 7:50 pm
“So you’re saying the African slaves preferred slavery over fighting for their freedom?” No, so to repeat, “Given the proportions of the slave population and the ability of the slave-owning state government to organize military power (shown in – but not only in – the Civil War) and other factors I’m not even thinking of, the collective action problems of organizing a slave revolt would be enormous and the chances of success (forming a separate viable polity? winning recognition of some kind of political equality?) would seem low and the odds of worsening the situation high. I suspect that the obstacles to a successful widespread revolt are actually even higher than my comments here indicate.” The collective action problems of organizing a slave revolt were doers of magnitude greater than organizing the Revolution and the odds of success far lower. Lincoln’s comment on John Brown’s raid is instructive here, as is Madison’s comment from Notes on Nullification that, in considering revolution, one must take into account “the means of resistance, the consequences of its failure” Wise words considering the condition of slaves in the United States as compared with say the colonists in1775-1776 or even the case of the Haitian Revolution.
“it takes a low man to pervert the obvious and straight forward limitations of the general gummint provided in the US Constitution” If you want to call Madison, Henry, etc. for believing that the Constitution barred legal, at-will secession.
“provided not only for the state, but the individual the best chance of existing in a reality that mimics the freedom that God intends” You will not find that sentiment in the Cornerstone Speech.
“Common sense dictates that men who had just fought the greatest army in the world and beaten them would cede sovereignty to the general gov’t” Common sense dictates that we are better off looking at what the wrote and said rather than what Jefferson Davis might have wished they had said. We have already seen what Madison said about the idea that states retained undivided sovereignty under the Constitution. Let us turn to his chief opponent at the Virginia ratifying convention. Henry said “That this is a consolidated Government is demonstrably clear, and the danger of such a Government, is, to my mind, very striking…Is the Government of Virginia a State Government after this Government is adopted? I grant that it is a Republican Government–but for what purposes? For such trivial domestic considerations, as render it unworthy the name of a Legislature.” Now I think Madison would have argued that Henry exaggerated how centralist the Constitution really was and underrated the role of the states in the Constitution, but they could agree that adoption of the Constitution meant that states gave up undivided sovereignty.
“These Americans unlike our contemporary twits” These Americans, at the Constitutional Convention, at the Virginia ratifying convention and in the Federalist were informed that the Constitution did not allow each state legislature the power to decide what the constitutional limits of the federal government were within that state’s boundaries. Madison couldn’t have been more clear about this in Federalist 39, “It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.”
“But, even with the Constitution, had they hung any number of Senators and Congressmen…” It is unclear who is to do the hanging and be the hanged. In both the Nullification controversy and the attempted secession of 1860-1861, the nullifiers/secessionists were a distinct minority. And public controversy is likely to enlist a substantial body of partisans on either side and rather more bloodshed that a few members of Congress or else coups d’état in which those who mange to gain control of the military seize power over the state and eliminate the political rights of the opposition. One can hardly imagine a better scenario for a government that alternates between anarchy and despotism.
May 5th, 2012 | 12:14 pm
Quick rebuttal:
Par. 1: These are excellent excuses but excuses none the less. Freedom/liberty is and always was worth engaging in violent revolution and in risking one’s life. You justify the lack of resistance to this great fear of the ‘consequences,’ and I don’t buy it. History tells us time and again how minorities with very little chance of success seek to overthrow those majorities who oppress them.
Par. 2: You’re hung up on ‘at will secession.’ My comment was directed at the fact that even the secretly contrived, and closed to the public, deliberations of the Constitution established a general gummint with specific, few, and enumerated powers while RESERVING all other political power either to the STATE or the individual. As I read you, you seem to agree with me?
Par. 3: You would enjoy the two volume “Political Sermons of the American Founding Era.”
Par. 4: I believe Mr. Henry’s quote should be in my column. He presciently recognizes, given the fallen nature of man, that this new Constitution will be perverted by consolidators, trimmers, and centralists of every stripe. Madison, no dummy, probably recognized that as well but it all depended on whose interests he was then serving.
Par. 5.: ” Madison couldn’t have been more clear about this in Federalist 39, “It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government.”
Pete, I’m smiling. This is very much like me saying that any political argument between Bob and Pete, Bob is going to decide. The states did not give up sovereignty, they ceded certain specific powers to the general gov’t.
It is critical to understand that the states established the general gov’t and provided those powers to that gov’t necessary to conduct its business as per the Constitution.
The establishment of the general gov’t/constitution was a voluntary compact among the several states. By definition and original intent any of the several states freely participating in this compact were also free to secede from this arrangement. Such is the very essence and nature of liberty, first exercised against Great Britain in 1776.
Par. 6: I’m with Jefferson on the idea of a little ‘revolution’ every generation or so. Sadly, the War of Northern Aggression ended that, but if we’d hang some legislators (and I agree, given the fallen nature of man, you’re going to hang a few innocent Congressmen now and then) it just might put the fear of God in them, not to mention the fear of the citizenry which is a good thing.
The Humean idea of a vibrant Americanism that incorporates the right of secession into his political thought is obvious in the First American Secessonist War of 1776 and made public in that beloved secessionist document, the Declaration of Independence.
In 1861 Mr. Lincoln, acting as the aggressor, ordered the invasion of the South, following the southern states’ legally conducted secessionist conventions, for the declared purpose of illegally maintaining the integrity of the mythical “Union.” The reasons, both economic and political, as to why the southern states chose to severe their eighty-eight year relationship with the United States of America was properly and legally addressed by their citizenry in convention as required.
Pete, the only leg you have to stand on is the nastiness of slavery and I’m more than willing to concede that, just as I’m sure that you’re willing to concede that the gov’t that came into existence as a result of Lincoln’s tyranny, our progressivist ‘social democracy’, has engineered the systematic slaughter of over fifty million American infants, most destroyed utilizing tax dollars and grant monies. And, of course, this American ‘social democracy’ has committed any number of additional transgressions that would not have occurred under a republican gov’t.
May 5th, 2012 | 8:10 pm
Bob,
1. “These are excellent excuses but excuses none the less.” I figure they looked less like “excuses” if your revolutionary prospects were limited to suicidal localized revolts whose chief medium-term effect would be a reign of terror inflicted on uninvolved slaves and free blacks both near and far. Some Madisonian prudence goes a long way here.
2. “You’re hung up on ‘at will secession.’ Well, if at-will secession is not legal, then the only kind of legal unilateral secession possible would be of the revolutionary kind. That kind of secession is dependent on the cause. Alexander Stephens explained for us the cause of the attempted secession of 1860-1861. He said, “Those ideas[that slavery was wrong], however, were fundamentally wrong. They rested upon the assumption of the equality of races. This was an error. It was a sandy foundation, and the government built upon it fell when the “storm came and the wind blew.” Our new government is founded upon exactly the opposite idea; its foundations are laid, its corner- stone rests, upon 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. This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth.” We can wonder whether splitting the United States to establish a slavery-based republic was a just cause.
3. Probably. I’ll get around to it. Thank you for the suggestion.
4. “I believe Mr. Henry’s quote should be in my column.” Well if Henry believes that the Constitution formed a consolidationist government (and he evidently did), then there can be no question of state government’s legal right to nullify federal law or secede. Now, I think Henry’s interpretation of the Constitution is too centralist, but Madison and Henry, the leaders of the two opposing sides at the Virginal ratifying convention agree that states give up their undivided sovereignty when they ratify the Constitution. I’m not sure how the people involved (including John Marshall) could have been clearer.
5. See above. See John Marshall. This is a case where both sides in the original dispute agree on the legalities.
6. “The Humean idea of a vibrant Americanism that incorporates the right of secession into his political thought is obvious in the First American Secessonist War of 1776 and made public in that beloved secessionist document, the Declaration of Independence.”
Quite so. So let us look at what the Declaration of Indolence tells us about moral criteria for revolutionary secession.
“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. But 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.”
A revolution to establish a slavery-based republic fails by these criteria as completely as is possible. It is, if anything, an inversion of the “vibrant Americanism that incorporates the right of secession” that was explained for us by the Founders and that neither Madison nor Jackson nor Lincoln ever denied.
June 21st, 2012 | 12:43 pm
Elected representatives of the people have two obligations:
One, to represent the views of their respective constituencies, those constituencies typically being from various opposed points of view.
Two, because more informed of the details of the issues than their respective constituencies, to vote their consciences, even when that is contrary to the constituency.
It is the extremist who reduces everything to simpleton’s either/or.
As for “interposition” and “nullification”: the meaning is this: the state “interposes” itself between Federal gov’t and state, and by that means “nullifies” the Federal law at issue.
It isn’t a complicated question, actually: Both Jefferson and Madison opposed “nullification,” which wasn’t difficult in view of the fact that the Constitution already trumped the “nullification” lie — it’s clearly a lie because, as Madison makes clear, it required consciously ignoring facts in order to deliberately misconstrue the “evidence” to justify the lie.
The US Constitution is expressly the supreme Law of the Land; thus any state law — it would require a law — purporting to nullify a Federal law would be contrary to that Federal law, thus immediately null-and-void.
Otherwise, all these little self-important groups of law-illiterates who take upon themselves the arrogant temerity to unilaterally declare laws “unconstitutional,” based solely upon their dislike of the law, are the essence of stupid and intellectually dishonest. The Constitution they falsely claim to be about defending provides the means by which to properly challenge those laws: by taking the matter to court, or by lobbying Congress for amendment or repeal, or both.
Instead, in essentially every instance, they call for violent revolution, the first step being assertion of one or another false justification for their self-important hurt feelings, and always in “defense” of the Constitution, which expressly slaps them down with this:
Art. I., S., 8, C. 15. The Congress shall have Power To provide for calling for the Militia to execute the Laws of the Union, (and) suppress Insurrections.
And, yes: Madison expressly denied the right of secession, based upon the principle of majority rule. Read again his denunciation of “nullification” as, as example, a “colossal heresy” and a “specious doctrine”. If those who falsely reduce the Constitution to mere “contract” want to insist on that falsehood, then they are claiming any party to a contract has a right to withdraw from it _without penalty_ — which makes nonsense of law itself.
Stupid is as stupid is because stupid is easier than knowing what one is talking about based upon standard distinctions instead of anarchic ignorance.
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