WEBVTT NOTE Is Secession Legal? 1 00:00:00.000 --> 00:00:17.000 I'm honored to be here and I'd like to thank, of course, Marshall DeRosso who couldn't make it for inviting me to be here and this is my second time at Mises and it's great and I spoke here about three years, four years ago now when my politically incorrect guide to the founding fathers hit the shelves, so it's an honor to be back. 2 00:00:17.000 --> 00:00:27.000 Now, I just want to start with the fact that, as Mark said, many of us are not used to the idea of secession. 3 00:00:27.000 --> 00:00:34.000 I was indoctrinated at a younger age because Clyde Wilson was my graduate director in graduate school. 4 00:00:34.000 --> 00:00:41.000 And so he had a wonderful sign on his wall, Calhoun for Senate, and it was great. 5 00:00:41.000 --> 00:00:48.000 So from the time I hit South Carolina for and even before that in meeting Clyde, 6 00:00:48.000 --> 00:00:51.000 I've always been interested in the topic of secession. 7 00:00:51.000 --> 00:00:54.000 So I'd like to actually start today with a quotation. 8 00:00:54.000 --> 00:00:58.560 This is going to involve some audience participation again, so we're playing Jeopardy today. 9 00:00:58.560 --> 00:01:02.080 I want you to tell me who said this. 10 00:01:02.080 --> 00:01:07.080 We are, sir, from principle and habit attached to the union of the states, but our attachment 11 00:01:07.080 --> 00:01:10.160 is to the substance and not to the form. 12 00:01:10.160 --> 00:01:15.480 It is to the good which this union is capable of producing and not to the evil, which has 13 00:01:15.480 --> 00:01:19.560 suffered unnaturally to grow out of it. 14 00:01:19.560 --> 00:01:23.260 If the time should ever arrive when this union shall be holding together by nothing but the 15 00:01:23.260 --> 00:01:53.260 the authority of law, when its incorporating, vital principle shall become extinct, when its principle exercises shall consist in acts of power and authority, not of protection and beneficence, when it shall lose the strong bond which it had hitherto had in the public affection, and when consequently we shall be one, not in the interest and mutual regard, but in name and form only, we, sir, shall look on that hour as the closing scene of our country's prosperity. 16 00:01:53.260 --> 00:02:05.260 The separation of the states as an event fraught with incalculable evils, and it is among our strongest objections to the present course of measures that they have, in our opinion, a very dangerous and alarming bearing on such an event. 17 00:02:05.260 --> 00:02:15.260 If a separation of states should ever take place, it will be on some occasion when one portion of the country undertakes the control to regulate and to sacrifice the interests of another, 18 00:02:15.260 --> 00:02:22.460 When a small and heated majority in the government taking counsel of their passions and not of their reason, 19 00:02:22.460 --> 00:02:28.660 contemptuously disregarding the interests and perhaps stopping the mouths of a large and respectable minority, 20 00:02:28.660 --> 00:02:36.460 shall by hasty, rash and ruinous measures threaten to destroy essential rights and lay waste the most important interests. 21 00:02:36.460 --> 00:02:42.860 Anybody know who said that? Not Lincoln. Good guess. Not Jefferson. Yes, sir. 22 00:02:42.860 --> 00:02:55.860 Daniel Webster in 1812, the great expounder, the man who argued that we don't have a compact. 23 00:02:55.860 --> 00:02:59.860 There's no compact there. We're one nation. We're one people. 24 00:02:59.860 --> 00:03:05.860 Daniel Webster said that in 1812. Of course, his objective at that time was to denounce the Madison Administration 25 00:03:05.860 --> 00:03:08.860 and, of course, the Union of the South and the West against the North. 26 00:03:08.860 --> 00:03:13.700 of the North. What they thought was a problem because of the Embargo Act and of course the 27 00:03:13.700 --> 00:03:19.020 War of 1812 and all the evils, he said, were coming from that. This was part of something 28 00:03:19.020 --> 00:03:23.240 called the Rockingham Memorial and he sent this letter to James Madison saying, you need 29 00:03:23.240 --> 00:03:28.360 to stop this stuff because if you don't, we're going to secede. So how can Daniel Webster 30 00:03:28.360 --> 00:03:33.740 say that in 1812 and then just a few years later say, you know Calhoun, you're crazy. 31 00:03:33.740 --> 00:03:39.740 Hayne, you're crazy. There's no way you can call this a compact. It's just a theory. 32 00:03:39.740 --> 00:03:46.140 Well, it's really a compact fact. So my topic of discussion today is secession legal, and 33 00:03:46.140 --> 00:03:53.820 I'll just make it short and sweet. Yes, thank you for your time. Secession is absolutely 34 00:03:53.820 --> 00:03:58.500 legal. And I'm actually going to base my talk today on a paper I wrote for the American 35 00:03:58.500 --> 00:04:03.500 and Conservative, which generated a lot of fun comments when I published it. 36 00:04:03.500 --> 00:04:09.500 But I'm going to start a little bit with some history, a history lesson of course, and all this should be familiar to you. 37 00:04:09.500 --> 00:04:13.500 Of course, the American War for Independence was a movement of secession. 38 00:04:13.500 --> 00:04:20.500 We had 13 independent states, as Thomas Jefferson called them in the Declaration of Independence, seceding from the British Empire. 39 00:04:20.500 --> 00:04:27.500 And of course, when the Treaty of Paris was officially ratified in 1783, each state was named, not as one conglomeration. 40 00:04:27.500 --> 00:04:57.500 Conglomeration. So we all know that these states were independent then. The Articles of Confederation and Perpetual Union, as it was called, and I'll get into that term perpetual union in a second. But of course, each state was recognized independently and each state maintained its sovereignty. So of course, that is a union of sovereign states. It's the Constitution. Even Hamilton called it the Constitution. Madison called it the Constitution. We just had a different Constitution after that. And I think we have to be very careful. 41 00:04:57.500 --> 00:05:05.500 in a second, of talking about secession from the Articles of Confederation, because in some ways it actually plays into the hands of the other side. 42 00:05:05.500 --> 00:05:08.500 And I'll mention what I mean by that. 43 00:05:08.500 --> 00:05:17.500 It was discussed in the 1790s by Northerners. For example, Rufus King and Oliver Ellsworth once cornered John Taylor of Caroline and said, 44 00:05:17.500 --> 00:05:24.500 hey look, John, we know this union isn't working well for us, and you're always trying to block stuff. Why don't we just separate now? 45 00:05:24.500 --> 00:05:27.540 We see that the Union is not going to work for a long period of time. 46 00:05:27.540 --> 00:05:29.620 We should just break up now. 47 00:05:29.620 --> 00:05:33.020 You know, let's make this a quick and painless divorce. 48 00:05:33.020 --> 00:05:34.700 And Taylor was taken back by this. 49 00:05:34.700 --> 00:05:37.060 He said, I don't understand why they're saying this. 50 00:05:37.060 --> 00:05:39.620 But of course, later on, Taylor would say 51 00:05:39.620 --> 00:05:43.780 secession was perfectly natural and logical. 52 00:05:43.780 --> 00:05:46.940 Secession, of course, was discussed in 1798 53 00:05:46.940 --> 00:05:50.260 when the federal government passed the Alien and Sedition Acts. 54 00:05:50.260 --> 00:05:52.740 And there were several who said, for example, 55 00:05:52.740 --> 00:05:56.460 Nathaniel Macon in North Carolina who said, you know what? Nullification is kind of a 56 00:05:56.460 --> 00:06:02.700 silly idea. Let's just secede. It makes more sense. We don't like the union. Just get out. 57 00:06:02.700 --> 00:06:07.060 Why do we have to nullify something that we all know is unconstitutional? Let's just leave 58 00:06:07.060 --> 00:06:11.700 the union. So there were many Southerners who thought nullification was just not even 59 00:06:11.700 --> 00:06:17.260 important. Just get out of the union. And then we had the Essex Junto in Massachusetts 60 00:06:17.260 --> 00:06:22.260 and Connecticut. And these are, of course, members of the founding generation who thought 61 00:06:22.260 --> 00:06:29.260 that the Louisiana Purchase was going to destroy the Union because you're going to have all these farmers come in here and these farmers aren't going to vote for us. 62 00:06:29.260 --> 00:06:36.260 So we need to get out of the Union now. Let's have our Northern Confederation and forget about this Southwest Alliance. 63 00:06:36.260 --> 00:06:46.260 Then, of course, I already mentioned Daniel Webster and many of these same individuals were part of the Hartford Convention at the tail end of the War of 1812 when they were openly talking about secession. 64 00:06:46.260 --> 00:06:52.260 The other thing they were talking about, of course, were a series of constitutional amendments which would forever alter the power of the general government. 65 00:06:52.260 --> 00:06:59.260 And one of the interesting things, of course, was a one-term limit for president. They all saw the executive as the bastion of abuse in this government. 66 00:06:59.260 --> 00:07:03.260 They knew that this is where the problems would come later on, and they were right. 67 00:07:03.260 --> 00:07:14.260 Of course, they wanted to curtail the power of the South by getting rid of the three-fifths clause of the Constitution and, of course, making it to where presidents had to rotate. 68 00:07:14.260 --> 00:07:23.260 You couldn't have the Virginia dynasty, they were ticked off that all these Virginians kept on getting elected and none of these Massachusetts could get into the executive office. 69 00:07:23.260 --> 00:07:35.260 And of course, the abolitionists later on wanted to secede. William Lloyd Garrison very openly said in the 1840s, you know what, this is a slave republic, let's get out, we'll leave the republic to them. 70 00:07:35.260 --> 00:07:40.380 and in fact this was the wedge that perceptive northerners started using in the 1820s and 71 00:07:40.380 --> 00:07:44.780 forward. They knew that the south and the west were united along economic interests. They're all 72 00:07:44.780 --> 00:07:49.420 farmers but yet if you could bring up this slavery issue you can break that alliance and then Henry 73 00:07:49.420 --> 00:07:53.580 Clay of course of course ingeniously started pulling the west into the northern sphere 74 00:07:53.580 --> 00:07:57.260 and that made the south the permanent minority rather than the north. So this was a political 75 00:07:57.260 --> 00:08:01.820 game that worked well for the north and the nationalists and then of course it was ultimately 76 00:08:01.820 --> 00:08:06.820 are really discussed and accomplished by the South between 1850 and 1861. 77 00:08:06.820 --> 00:08:09.820 Since then, though, it's been crickets chirping. What's happened? 78 00:08:09.820 --> 00:08:17.820 We all know, as Mark said, that the war essentially created a climate where anytime you say secession, 79 00:08:17.820 --> 00:08:24.820 well, that's a dirty word. You can't say that because all you're going to do is just try to enslave the rest of the population. 80 00:08:24.820 --> 00:08:28.820 You elites who are succeeding are going to enslave everybody else. Of course, that's the way it works. 81 00:08:28.820 --> 00:08:30.720 because accession is a pro-slavery movement. 82 00:08:30.720 --> 00:08:32.720 Well, of course, we know it's not true. 83 00:08:32.720 --> 00:08:34.160 Throughout American history, it's not true. 84 00:08:34.160 --> 00:08:35.480 In fact, it's a movement of liberty. 85 00:08:35.480 --> 00:08:40.160 So it's people exercising their self-determination. 86 00:08:41.400 --> 00:08:43.260 Now, in the antebellum period, 87 00:08:43.260 --> 00:08:45.860 several commentators on the Constitution said 88 00:08:45.860 --> 00:08:46.820 this was plausible. 89 00:08:46.820 --> 00:08:48.700 Well, the most famous being William Raw, 90 00:08:48.700 --> 00:08:50.300 who in fact was a Pennsylvanian, who said, 91 00:08:50.300 --> 00:08:51.940 you know, states can secede from the union. 92 00:08:51.940 --> 00:08:54.180 That makes sense. 93 00:08:54.180 --> 00:08:57.180 It's perfectly natural to think that it can happen. 94 00:08:57.180 --> 00:09:11.180 And of course, then there's John C. Calhoun saying the same thing, Abel Upsher, who was a very prominent Whig in the true sense that he was opposed to executive authority, was saying the same thing. 95 00:09:11.180 --> 00:09:21.180 And, you know, as I already mentioned, Northerners had said this as well. So the issue comes down to sovereignty, of course, and legitimacy. 96 00:09:21.180 --> 00:09:27.180 If the people decide in popularly elected conventions that they are no longer part of that government, 97 00:09:27.180 --> 00:09:32.180 then of course secession happens in fact, because you have said it happens. 98 00:09:32.180 --> 00:09:35.180 And that is a very strong argument for it. 99 00:09:35.180 --> 00:09:41.180 Now, what I'm going to do actually is detail first and foremost the arguments against secession as legal, 100 00:09:41.180 --> 00:09:46.180 and then I will break them apart, and tear them apart. 101 00:09:46.180 --> 00:09:55.180 Now, and I'm actually basing this on a letter supposedly written by Antonin Scalia, the great originalist in the Supreme Court. 102 00:09:55.180 --> 00:10:00.180 We all know he is, because that's what everybody tells us he is. 103 00:10:00.180 --> 00:10:07.180 He wrote in 2006 apparently that the secession was out of the realm of legal possibility for several reasons. 104 00:10:07.180 --> 00:10:12.180 One, because the United States would not be a party to a lawsuit on the issue. 105 00:10:12.180 --> 00:10:18.260 2. The constitutional basis of secession had been resolved by the Civil War, and 3. There is no right 106 00:10:18.260 --> 00:10:23.220 to secede, as the Pledge of Allegiance clearly illustrates through the line, One Nation Indivisible. 107 00:10:26.340 --> 00:10:32.900 That proves it. I mean, if there's any argument against secession, it's got to be the Pledge of 108 00:10:32.900 --> 00:10:37.700 Allegiance. You know, why, we should just fold up our books and go home, forget this conference, 109 00:10:37.700 --> 00:10:43.700 because Francis Bellamy told us that we're in one nation, indivisible. 110 00:10:43.700 --> 00:10:48.700 And of course Scalia was not the first Supreme Court justice to establish this position. 111 00:10:48.700 --> 00:10:54.700 In the case of Texas v. White in 1869, Supreme Court Chief Justice Salmon P. Chase 112 00:10:54.700 --> 00:11:00.700 wrote that the union between Texas and the other states was as complete, as perpetual, 113 00:11:00.700 --> 00:11:05.700 as indissoluble as the union between the original states. 114 00:11:05.700 --> 00:11:10.100 There was no place for reconsideration or revocation except through revolution 115 00:11:10.100 --> 00:11:16.500 or through the consent of the states. That's his quote. The majority opinion in this case struck 116 00:11:16.500 --> 00:11:22.420 down the Texas Ordinance of Secession calling it null and crafted a decision that rendered all acts 117 00:11:22.420 --> 00:11:27.780 of secession illegal according to the perpetual union of both the Articles of Confederation 118 00:11:27.780 --> 00:11:32.420 and subsequent Constitution for the United States. We also have to say that it's the Constitution 119 00:11:32.420 --> 00:11:35.040 for the United States, not of the United States. 120 00:11:35.040 --> 00:11:38.660 Chase, of course, did leave an opening. 121 00:11:38.660 --> 00:11:42.380 He said revolution of the consent of the states, but without either, secession could never 122 00:11:42.380 --> 00:11:46.580 be considered a legal act. 123 00:11:46.580 --> 00:11:51.600 The arguments against legal secession are generally based on both a historical concept 124 00:11:51.600 --> 00:11:54.580 of the Union and the language of the Constitution itself. 125 00:11:54.580 --> 00:11:59.300 In the Texas v. White decision, Chase began his legal challenge to secession with a historical 126 00:11:59.300 --> 00:12:01.260 discussion of the Union. 127 00:12:01.260 --> 00:12:06.740 He suggested that the Union predated the states and grew from a common kindred spirit during 128 00:12:06.740 --> 00:12:08.860 the years leading to the American War for Independence. 129 00:12:08.860 --> 00:12:12.900 So forget about these colonies and then later states. 130 00:12:12.900 --> 00:12:15.700 It was just a common, we're just all sitting around the campfire. 131 00:12:15.700 --> 00:12:17.380 You know, we need to be in a union together. 132 00:12:17.380 --> 00:12:18.380 That's what it was. 133 00:12:18.380 --> 00:12:19.660 It was one people. 134 00:12:19.660 --> 00:12:24.860 This one people mentality was best articulated by the Supreme, by Supreme Court Justice Joseph 135 00:12:24.860 --> 00:12:29.780 Story and his famous commentaries on the Constitution of the United States. 136 00:12:29.780 --> 00:12:33.620 Story who channeled John Marshall and Alexander Hamilton and really that's 137 00:12:33.620 --> 00:12:36.340 what you have this channeling of each other you know it's like they died and 138 00:12:36.340 --> 00:12:41.380 they got out their Ouija board and kept on channeling each other for it. Reason 139 00:12:41.380 --> 00:12:45.140 that the Constitution was framed and ratified by the people at large not the 140 00:12:45.140 --> 00:12:48.900 people of an individual state and thus held the same legal position of a state 141 00:12:48.900 --> 00:12:54.040 itself formed for many counties this is his quote this is story's quote the 142 00:12:54.040 --> 00:12:59.540 Constitution of a Confederate Republic that is of a national Republic those two 143 00:12:59.540 --> 00:13:11.540 Formed of several states is, or at least may be, not less an irrevocable form of government than the constitution of a state formed and ratified by the aggregate of several counties of the state. 144 00:13:11.540 --> 00:13:25.540 Now, this is very important in what he said here, because in one sentence, store or reduce the states to the status of a county, shire or province, because the union is nothing more than what we have in a state. 145 00:13:25.540 --> 00:13:51.180 The General Argument was used as both a hammer during Reconstruction and after the sovereignty of the states was abused by the war. 146 00:13:51.180 --> 00:13:59.480 Story additionally concluded, as did Chase in 1869, that the term perpetual found in the Articles of Confederation deemed the Union indissoluble. 147 00:13:59.480 --> 00:14:12.580 Chase surmised that the Constitution simply made the Union more perfect, while Story suggested that the Constitution superseded the Articles of Confederation but did not change the permanent and perpetual nature of the Union. 148 00:14:12.580 --> 00:14:22.020 Story defended his position with the Supremacy Clause, found in Article 6, which states that all laws or treaties made in pursuance of the Constitution were the supreme law of the land. 149 00:14:22.020 --> 00:14:32.020 And he pointed to the letter sent by the Philadelphia Convention accompanying the Constitution to the state ratifying conventions that the Constitution aimed at a consolidation of the Union. 150 00:14:32.020 --> 00:14:42.220 Hence, the Story and Chase of the Union continued to exist in an unaltered, i.e. consolidated form and could not be dissolved. 151 00:14:42.220 --> 00:14:46.420 So there you have it. What they're saying is we have a consolidated nation from the beginning. 152 00:14:46.420 --> 00:14:52.180 We've never had individual states. We've never had states joining a confederation. It's always been one nation. 153 00:14:52.180 --> 00:14:56.620 Another argument against this session centers on the language of Article 1, Section 10 154 00:14:56.620 --> 00:15:02.500 of the Constitution, which declares that no state shall enter into a treaty, alliance, or confederation. 155 00:15:02.500 --> 00:15:07.780 To proponents of this position, Article 1, Section 10 unequivocally shows that the states were formed, 156 00:15:07.780 --> 00:15:12.660 which formed the Confederate States of America were in clear violation of the Constitution, 157 00:15:12.660 --> 00:15:18.420 thus invalidating their government and the individual acts of secession which led to it. 158 00:15:18.420 --> 00:15:23.620 Abraham Lincoln indirectly defended this position by declaring the seceding states were in rebellion 159 00:15:23.620 --> 00:15:28.260 and therefore still members of the Union. The Constitution then was still legally enforceable 160 00:15:28.260 --> 00:15:32.500 in those states including Article 1, Section 10. So this is very ingenious. The arguments they're 161 00:15:32.500 --> 00:15:36.500 These are fairly strong arguments, but they're easily destroyed. 162 00:15:36.500 --> 00:15:42.500 Finally, some will concede that the original 13 states may have had an argument for secession 163 00:15:42.500 --> 00:15:47.500 due to the Declaration of Independence and Thomas Jefferson's language establishing 13 free and independent states. 164 00:15:47.500 --> 00:15:54.500 But the other 37 states, well those formed at least in part through the common territory of the United States, 165 00:15:54.500 --> 00:16:00.500 have no claim to secession. They were not states until Congress granted them through their benevolence 166 00:16:00.500 --> 00:16:01.500 and so on. 167 00:16:01.500 --> 00:16:26.140 These arguments seem like a very strong case against secession. 168 00:16:26.140 --> 00:16:30.860 Free Supreme Court, justices, one famous president, a bloody war, in the language of a modern 169 00:16:30.860 --> 00:16:35.420 pledge of allegiance, all for the conclusive proof that secession, while an entertaining 170 00:16:35.420 --> 00:16:39.300 philosophical exercise, has no legal basis. 171 00:16:39.300 --> 00:16:43.500 His opinions and conclusions, however, all have gaping holes. 172 00:16:43.500 --> 00:16:47.060 First and foremost, let's deal with Scalia. 173 00:16:47.060 --> 00:16:50.820 Secession as accomplished by the southern states in 1860 and 1861, and as discussed 174 00:16:50.820 --> 00:16:55.180 by the North in the Hartford Convention of 1815 and others, is an independent act by 175 00:16:55.180 --> 00:17:00.100 by the People of the States and accomplished in the same fashion as the several conventions 176 00:17:00.100 --> 00:17:02.620 that occurred throughout the American history. 177 00:17:02.620 --> 00:17:07.340 So again, the Confederate states were formed by conventions. 178 00:17:07.340 --> 00:17:13.340 In fact, larger majorities than even existed in 1776 when the original states broke away 179 00:17:13.340 --> 00:17:14.340 from the British Empire. 180 00:17:14.340 --> 00:17:18.780 So this was the act of a people and self-determination. 181 00:17:18.780 --> 00:17:22.220 The United States would never be a party to a lawsuit on the issue because secession, 182 00:17:22.220 --> 00:17:28.060 both de facto and de jure, is an extra-legal act of self-determination, and once the states 183 00:17:28.060 --> 00:17:33.100 have seceded from the Union, the Constitution is no longer in force in regard to the seceded 184 00:17:33.100 --> 00:17:34.100 political body. 185 00:17:34.100 --> 00:17:36.300 It can't happen. 186 00:17:36.300 --> 00:17:40.000 This same rule applies to Article 1, Section 10, against secession. 187 00:17:40.000 --> 00:17:43.240 If the Constitution is no longer in force, the states have separated and resumed their 188 00:17:43.240 --> 00:17:47.540 independent status, then the Supreme Court would have no jurisdiction and therefore could 189 00:17:47.540 --> 00:17:52.540 not determine the legality of the move. 190 00:17:52.540 --> 00:17:57.460 So the states acceded to the Constitution, and in fact I want to talk about Albert Taylor 191 00:17:57.460 --> 00:18:00.620 Bledsoe, I don't bring up in this paper, Mike Church and I are actually working on an edited 192 00:18:00.620 --> 00:18:02.600 version of his, it's Davis the Trader. 193 00:18:02.600 --> 00:18:06.460 If you've never read it, you can wait until he has it and then you can get from Mike Church. 194 00:18:06.460 --> 00:18:11.900 But of course Bledsoe brings up this point quite often and says the states acceded so 195 00:18:11.900 --> 00:18:12.900 they can secede. 196 00:18:12.900 --> 00:18:29.900 The Union then, through a declaration of war, could attempt to force the seceded states to remain, but even victorious, that would not solve a philosophical issue. 197 00:18:29.900 --> 00:18:40.900 War and violence do not, and cannot, crush the natural right of self-determination. It can muddle the picture and force the vanquish into submission, so long as the boot is firmly implanted on their collective throats. 198 00:18:40.900 --> 00:18:49.020 This is Oliver Ellsworth, a secessionist. 199 00:18:49.020 --> 00:18:54.540 He said in 1788 that he feared a coercion of arms in relation to a delinquent state. 200 00:18:54.540 --> 00:18:55.540 He said this, 201 00:18:55.540 --> 00:18:59.300 This constitution does not attempt to coerce sovereign bodies, states, in their political 202 00:18:59.300 --> 00:19:00.340 capacity. 203 00:19:00.340 --> 00:19:04.900 No coercion is applicable to such bodies but that of armed force. 204 00:19:04.900 --> 00:19:08.260 If we should attempt to execute the laws of the Union by sending an armed force against 205 00:19:08.260 --> 00:19:14.260 As a delinquent state, it would involve the good and the bad, the innocent and the guilty, and the same calamity. 206 00:19:14.260 --> 00:19:19.260 Ellsworth recognized, as did the majority of the founding generation, that force did not destroy sovereignty. 207 00:19:19.260 --> 00:19:26.260 It created artificial supremacy, but sovereignty, the basic tenet of the founding, could not be surrendered in such a manner. 208 00:19:26.260 --> 00:19:29.260 Sovereignty, in fact, could not be surrendered at all. 209 00:19:29.260 --> 00:19:35.260 It can be delegated, as in the powers granted to the general government in Article 1, but never surrendered. 210 00:19:35.260 --> 00:19:38.760 It cannot be divided either. 211 00:19:38.760 --> 00:19:42.500 Now Scalia's Pledge of Allegiance analogy is the most absurd argument of the bunch. 212 00:19:42.500 --> 00:19:45.820 The modern Pledge of Allegiance is written by Francis Bellamy, a socialist minister who 213 00:19:45.820 --> 00:19:50.380 wanted to indoctrinate American school children with a nationalist message, one based on the 214 00:19:50.380 --> 00:19:54.780 great speeches of Daniel Webster and Abraham Lincoln in relation to the one nation which 215 00:19:54.780 --> 00:19:57.420 the Civil War was fought to prove. 216 00:19:57.420 --> 00:20:00.500 Sprinkle in some liberty and justice from the French Revolution and you have a message 217 00:20:00.500 --> 00:20:03.980 that any good leftist nationalist can embrace. 218 00:20:03.980 --> 00:20:07.760 The founding generation would not have said such a pledge if there were no other reason 219 00:20:07.760 --> 00:20:10.960 that most would not view the United States as a nation in the strict sense of a word, 220 00:20:10.960 --> 00:20:13.420 a single people. 221 00:20:13.420 --> 00:20:16.760 The other issues involved in the debate are slightly more complicated, but in several 222 00:20:16.760 --> 00:20:19.800 instances come back to Scalia's more simplistic analysis. 223 00:20:19.800 --> 00:20:24.760 In the Texas v. White decision, Chase implicitly reasoned that the union was indissoluble contract 224 00:20:24.760 --> 00:20:29.160 between the American people and the federal government, or in this case, the people of 225 00:20:29.160 --> 00:20:31.960 Texas and the federal government. 226 00:20:31.960 --> 00:20:36.280 All contracts by nature are intended to be perpetual. We know that. You get a marriage 227 00:20:36.280 --> 00:20:42.480 contract, it's intended to be perpetual. But is it? You get into a business arrangement, 228 00:20:42.480 --> 00:20:45.900 it's intended to be perpetual as long as you're making money. But if you're not, you break 229 00:20:45.900 --> 00:20:51.360 the contract. But if this were the case, how could nine states ratify a new constitution 230 00:20:51.360 --> 00:20:57.000 while four states remain part of another union in clear violation of the Articles of Confederation? 231 00:20:57.000 --> 00:21:04.000 The dangers of the Articles require the consent of all 13 states, not nine, and thus the Constitution can be viewed in part as an act of secession. 232 00:21:04.000 --> 00:21:13.000 Now again, I mentioned this is a little dangerous because the basic tenets of the Constitution is that they were maintaining the union of the Articles of Confederation. 233 00:21:13.000 --> 00:21:22.000 It was more perfect, but it was still the same union. So in that case, the story is actually correct, but that union, of course, had sovereign independent communities, political entities, states. 234 00:21:22.000 --> 00:21:33.000 So I think that's what we have to remember. It's fine to say that, that this union stayed the same, but if that stayed the same then the articles are still in effect essentially with some changes. That's the Constitution. 235 00:21:33.000 --> 00:21:37.000 Moreover, James Madison argued that the union was a different type of contract. He said, 236 00:21:37.000 --> 00:21:48.000 We are not to consider the Federal Union as analogous to the social compact of individuals, for if it were so, a majority would have the right to bind the rest and even to form a new Constitution for the whole. 237 00:21:48.000 --> 00:21:49.840 And that's not what happened. 238 00:21:49.840 --> 00:21:53.040 The Constitution was framed by the unanimous consent of the states present in convention 239 00:21:53.040 --> 00:21:57.400 assembled in Philadelphia, but it had no teeth until the states, in convention, ratified 240 00:21:57.400 --> 00:21:58.400 it. 241 00:21:58.400 --> 00:22:02.120 Even at that point, Madison suggested the states could not bind the rest into accepting 242 00:22:02.120 --> 00:22:04.100 the document or remaining in the Union. 243 00:22:04.100 --> 00:22:09.840 The Constitution does not have a coercive principle, as Ellsworth called it, and indissoluble 244 00:22:09.840 --> 00:22:13.400 union would suggest that it does. 245 00:22:13.400 --> 00:22:19.600 Waging war against them, the states, as it says in the Constitution, is an act of treason. 246 00:22:19.600 --> 00:22:23.400 A state can only be protected by the central government on the application of the legislature 247 00:22:23.400 --> 00:22:27.480 or the executive in case of invasion. 248 00:22:27.480 --> 00:22:31.080 Lincoln violated both constitutional safeguards against coercion by the central government 249 00:22:31.080 --> 00:22:36.960 in 1861, of course, only if the states remained in the Union, as he insisted they did. 250 00:22:36.960 --> 00:22:42.720 If not, war required a declaration from Congress, something Lincoln did not have, and by declaring 251 00:22:42.720 --> 00:22:46.140 or Congress would have recognized the Confederate states as a legitimate government. 252 00:22:46.140 --> 00:22:50.520 Either way, Lincoln violated the Constitution, thus rendering the bloody-nose argument against 253 00:22:50.520 --> 00:22:53.080 secession void. 254 00:22:53.080 --> 00:22:57.360 This one-people argument was dissected by John Taylor of Caroline and Abel P. Upture 255 00:22:57.360 --> 00:22:59.960 in their respective commentaries on the document. 256 00:22:59.960 --> 00:23:03.860 In his new views of the Constitution of the United States, Taylor contended that the continuity 257 00:23:03.860 --> 00:23:07.700 between the Articles of Confederation and the Constitution reinforce the sovereignty 258 00:23:07.700 --> 00:23:11.800 of the states, as I just mentioned, and declared that there are many states in America, but 259 00:23:11.800 --> 00:23:18.040 But no state of America, nor any people of an American state. A constitution for America 260 00:23:18.040 --> 00:23:22.680 or Americans would therefore have been similar to a constitution for utopia or utopians. 261 00:23:22.680 --> 00:23:26.340 That's a wonderful line. 262 00:23:26.340 --> 00:23:30.560 This view is in sharp contrast to Chase to argue that continuity maintained a perpetual 263 00:23:30.560 --> 00:23:35.060 union. Taylor wrote, this construction bestows the same meaning upon the same words in our 264 00:23:35.060 --> 00:23:39.600 three constituent or elemental instruments and exhibits the reason why the whole language 265 00:23:39.600 --> 00:23:47.600 The passage of the Constitution is a finance to the idea of a league between sovereign states and hostile to that of a consolidated nation. 266 00:23:47.600 --> 00:23:53.600 Upshur was more direct in his defense of both nullification and secession as a right of the sovereign states. 267 00:23:53.600 --> 00:23:59.600 Published as a direct attack on stories polemic, Upshur is a brief inquiry into the true nature and character of our federal government. 268 00:23:59.600 --> 00:24:03.600 It's perhaps the last great commentary on the antebellum period. 269 00:24:03.600 --> 00:24:08.760 Upshur declared that imaginative construction of people like Story and Webster and insisted 270 00:24:08.760 --> 00:24:12.920 that consolidation was never the aim of the Constitution. 271 00:24:12.920 --> 00:24:20.120 In defending the rights of the states to control the government and interpose their sovereignty 272 00:24:20.120 --> 00:24:24.880 to control central authority, Upshur said, the checking and controlling influences which 273 00:24:24.880 --> 00:24:29.080 afford safety to public liberty are not to be found in the government itself. 274 00:24:29.080 --> 00:24:32.140 The people cannot always protect themselves against their rulers. 275 00:24:32.140 --> 00:24:36.520 If they could, no free government in pastimes would have been overthrown. 276 00:24:36.520 --> 00:24:40.760 Power and patronage cannot so easily be limited and defined as to rob them of their corrupting 277 00:24:40.760 --> 00:24:44.460 influences over the public mind. 278 00:24:44.460 --> 00:24:48.780 It is truly and wisely remarked by the Federalists that a power over a man's substance is a power 279 00:24:48.780 --> 00:24:50.620 over his will. 280 00:24:50.620 --> 00:24:54.060 As little as possible of this power should be entrusted to the Federal Government, and 281 00:24:54.060 --> 00:24:59.520 even that little should be watched by a power authorized and competent to arrest its abuses. 282 00:24:59.520 --> 00:25:04.640 That power can be found only in the states, and this consists the great superiority of 283 00:25:04.640 --> 00:25:07.120 the federative system over every other. 284 00:25:07.120 --> 00:25:12.160 In that system, the federal governor is responsible not directly to the people en masse, but to 285 00:25:12.160 --> 00:25:16.840 the people in their character of distinct political corporations. 286 00:25:16.840 --> 00:25:21.320 However easy it may be to steal power from the people, governments do not so readily 287 00:25:21.320 --> 00:25:23.000 yield it to one another. 288 00:25:23.000 --> 00:25:26.960 The confederated states confer on their common government only such power as they themselves 289 00:25:26.960 --> 00:25:44.960 In their hands, the power of interposition is attended with no danger. It may be safely lodged where there is no interest to abuse it. 290 00:25:48.960 --> 00:25:54.960 During the Philadelphia Convention of 1787, Gouverneur Morris of Pennsylvania outlined the distinction between a federal and national government, 291 00:25:54.960 --> 00:25:58.640 Government, the former being a mere compact resting on the good faith of the parties, 292 00:25:58.640 --> 00:26:01.760 the latter having a complete and compulsive operation. 293 00:26:01.760 --> 00:26:06.440 If the Constitution, he said, established a Federal Government, and it did, then the 294 00:26:06.440 --> 00:26:08.160 Constitution did not have a compulsive operation. 295 00:26:08.160 --> 00:26:12.320 In essence, the people of the states and convention could either interpose their sovereignty to 296 00:26:12.320 --> 00:26:15.520 arrest the acts of the General Government or withdraw from the Union. 297 00:26:15.520 --> 00:26:20.560 Morris, a nationalist, recognized that the states still held sway when he suggested 298 00:26:20.560 --> 00:26:41.560 The Constitution, as ratified in 1787 and 1788, is a mere compact resting on the good faith of the parties, that compact can be unilaterally broken at any point by the same people of the states which ratified it. 299 00:26:41.560 --> 00:26:52.040 Now, that said, so obviously secession, if you just look at the case, is legal. And I 300 00:26:52.040 --> 00:26:57.280 concluded this particular essay with a discussion which I made in some ways a little more palatable 301 00:26:57.280 --> 00:27:01.520 to the readers of American Conservative. And of course that didn't work well because they 302 00:27:01.520 --> 00:27:08.960 still call me rabid secessionists and I have horns growing out my head and a tail. But 303 00:27:08.960 --> 00:27:12.960 What I wanted to say is, of course, there are ways we can look at secession outside 304 00:27:12.960 --> 00:27:17.200 of political bodies. 305 00:27:17.200 --> 00:27:20.740 One thing you can do, and of course Ron Paul has hit on this very recently with his new 306 00:27:20.740 --> 00:27:22.760 books coming out, is homeschooling. 307 00:27:22.760 --> 00:27:24.520 That is an act of secession. 308 00:27:24.520 --> 00:27:27.200 You are seceding from the state. 309 00:27:27.200 --> 00:27:30.160 You are taking your children out of their control. 310 00:27:30.160 --> 00:27:33.040 And so the more we can do that, the better off we're going to be. 311 00:27:33.040 --> 00:27:38.720 The more independent we can become as a people, the less control that general government is 312 00:27:38.720 --> 00:28:08.720 is going to have over over our lives. And so I actually think that secession even in terms of a state model is still too large. You know, Hume talked about his ideal republic, which decentralized even further than a state. You know, if you look at the population of the state of Alabama, there was many people in Alabama today as there were in the entire United States in 1790. Well, even that is too large to be a republic. Republics have to be small. And so if we're going to talk about secession, we need to get people interested in small. And by pulling your kids out of school, by doing 313 00:28:08.720 --> 00:28:20.720 I think things on the local level, that's actually what you're promoting. Small is good, and even the lefties can be brought on board with that, the greens and other people, because they love, you know, local, homegrown products and local shops. 314 00:28:20.720 --> 00:28:32.720 So if you start pushing that agenda and that message, I think secession becomes palatable to a wide, wide range of people, and I think it becomes something that's highly possible and, of course, legal. 315 00:28:32.720 --> 00:28:41.720 So I thank you for your time. Hopefully this is some ammunition moving forward to say that secession is definitely legal when you're in your arguments with your friends.