WEBVTT

NOTE Was the Union Army's Invasion of the Confederate States a Lawful Act?

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I want to thank Lew Rockwell and the Mises Institute and those who contributed to this

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event for allowing me to participate.

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I want to thank Jeff Tucker, who encouraged me to write a paper, and for encouraging me

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to pursue a critique of Lincoln's arguments in favor of the Union.

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Thanks to Jeff, any chance I ever had of being a judge of anything other than a beauty contest

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are gone forever.

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Let me start off by saying that if this conference had been held in 1861 in Washington, D.C.

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or any other northern city, we would all be on our way to federal prison right now.

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In the process of being arrested and searched and jailed without just cause, our rights

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under the first, fourth, fifth, sixth and eighth amendments would have been violated.

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This precise scenario arbitrary arrests based on thoughts spoken in violation of five amendments

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to the Constitution was official Union policy throughout the Civil War and one thought necessary

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to the cause of preserving the Union.

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Of course it doesn't take a logician to realize that with the Bill of Rights torn out of the

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Union's Constitution, and dead in the souls of its leaders, that the Union itself had

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already died, the Jeffersonian Republic, and therefore that the great cause of quote preserving

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the Union was a gigantic and so far successful historical fraud. It is quite appropriate

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that P.T. Barnum, the man who said,

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there's a sucker born every minute,

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led a violent attack on an anti-war meeting

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in Connecticut in 1861.

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The old union expired on May 27th, 1861.

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On that date, the Army of the United States of America,

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a nation formed by consecutive secessions,

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first from Great Britain in 1776,

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and then from itself in 1788,

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invaded Jefferson's Virginia, which had already seceded from the Union in order to stop that

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secession by violent force. The historical result of the effort begun that day is well

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known and indisputable. After four years of brutal warfare which killed 620,000 Americans,

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the United States nullified the secession of the Confederate States and forcibly re-enrolled

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them into the newly constituted Union. The Civil War ended slavery, left the South and

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and Economic Ruins, and set the stage for 12 years of military rule in the South.

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Beyond its immediate effects, the Civil War made drastic changes in law and politics,

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which continue to shape our world 130 years later.

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Historian Arthur Eckert writes,

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along with the terrible destruction of life and property suffered in four years of fighting,

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when tremendous changes in American life and thought, especially a decline in liberalism,

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on all questions save that of slavery.

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Through a policy of arbitrary arrests made possible by Lincoln's suspension of habeas corpus,

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persons were seized and confined on the suspicion of disloyalty or of sympathy with the Southern cause.

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Thus, in the course of the Civil War, a total of 13,000 civilians was estimated to have been held as political prisoners,

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often without any sort of trial or after only cursory hearings in front of a military tribunal.

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The Civil War caused and allowed a tremendous expansion in the size and power of the federal government.

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It gave us our first federal conscription law, first progressive income tax, first enormous standing army.

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It gave us a higher tariff and greenbacks.

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Liberal historian James McPherson writes approvingly,

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This astonishing blitz of laws did more to reshape the relation of the government and the economy

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This Civil War legislation created the blueprint for modern America. Albert J. Knott was more critical of the war's impact.

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Quote, Lincoln overruled the opinion of Chief Justice Taney that suspension of habeas corpus was unconstitutional,

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and in consequence the mode of the state was, until 1865, a monocratic military despotism.

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In 1935, a monocratic military despotism. The doctrine of reserve powers was naved up ex post facto as a justification for his acts.

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But as far as the intent of the Constitution is concerned, it was obviously pure invention.

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In fact, a very good case could be made out for the assertion that Lincoln's acts resulted in a permanent radical change in the entire system of constitutional interpretation.

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That since his time, interpretations have not been interpretations of the Constitution, but merely of public policy.

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A strict constitutionalist might indeed say that the Constitution died in 1861,

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and one would have to scratch one's head pretty diligently to refute him.

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Let's explore Knox's thesis by examining the central constitutional issue of the war.

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Or was the United States' invasion of the Confederate States a lawful act?

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In his special address to Congress on July 4th, 1861, President Lincoln called the doctrine

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of the secessionists an insidious debauching of the public mind.

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They invented, he said, an ingenious sophism, which, if conceded, was followed by perfectly

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logical steps through all the incidents to the complete destruction of the Union.

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This sophism itself is that any State of the Union may, consistently with the National

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Constitution, and therefore lawfully and peacefully withdraw from the Union, without the consent

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of the Union or of any State.

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Now ironically it was not fire-eating Southern rebels who had originated this sophism, but

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the man Lincoln called the most distinguished politician in our history, Thomas Jefferson.

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Mises implanted the seeds of the secession doctrine with his Kentucky Resolution of 1798,

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written in protest to the Alien and Sedition laws, quote,

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The several states composing the United States are not united on the principle of unlimited

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submission to their general government, but that by compact, under the style and title

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of the Constitution of the United States, and of certain amendments thereto, they constituted

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to the general government for general purposes, delegated to the government certain powers

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reserving each state to itself, the residuary massive right to their own self-government,

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and that whenever, when so ever, the general government assumes undelegated powers, its

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acts are unauthoritative, void and of no effect.

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Now Hannes Taylor called Jefferson's compact doctrine the Pandora's box out of which flew

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The closely related doctrines of nullification and secession, which he notes, with less than

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perfect foresight, were extinguished once and forever by the Civil War.

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Jefferson's biographer, Willard Stern Randall, agrees, quote, Jefferson forthrightly held

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that where the national government exercised powers not specifically delegated to it, each

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state has an equal right to judge the mode and measure of redress.

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He was, he assured his friend Madison, confident in the good sense of the American people.

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But if they did not rally round the true principles of our Federal compact, he was determined

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to sever ourselves, meaning Virginia, from that union we so much value, rather than give

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up the rights of self-government, in which alone we see liberty, safety and happiness.

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In reply to this insidious debauching of the public mind, Lincoln constructs a straw man

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and Sucessionist Argument.

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The sophism derives much, perhaps the whole of its currency, from the assumption that

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there is some omnipotent and sacred supremacy pertaining to a state, to each state of our

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Federal Union.

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Now, no sucessionist, including Jefferson, made such an argument, though it sounds ominously

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like a description of Lincoln's own feelings about the Union.

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Lincoln's denigration of the states and glorification of the Union is paradoxical, given the undisputed

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fact that the states created the Union. Now Lincoln challenges the claim of

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reserve state powers by asserting that no state except Texas had ever been a

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state out of the Union. He argues that quote the states passed into the Union

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even before 1776, united to declare their independence in 1776, declared a

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perpetual union when they ratified the Articles of Confederation, and finally

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Lincoln created the present union by ratifying the constitution in 1788.

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Now there are many, many problems with this argument.

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Lincoln confuses no fewer than four separate concepts of union.

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Prior to July 4th, 1776, the colonists were united by their increasing concerns over the

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violation of their rights by the British government.

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They met in a continental congress which passed a declaration of independence and organized

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the Revolutionary War effort.

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Now prior to 1776, no issue of secession could possibly have arisen because they still considered

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themselves to be part of Great Britain.

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Nor was there any legal document agreed to by the Continental Congress which directly

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or indirectly addressed the issue of secession.

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Thus the union that existed prior to that time is of absolutely no importance to the

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issue of secession.

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Next comes the union created by the Declaration of Independence.

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Now the most notable fact, and Lew mentioned this yesterday, is that the Declaration announces

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a lawful secession by the colonies from Great Britain based on the right of the people to

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alter or abolish their form of government.

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It is thus apparent that the Declaration of Independence establishes that the right of

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secession is among the inalienable rights of men.

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The Declaration is therefore literally the last place on earth one would go to find legal

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The Declaration was not, however, a legal document, a constitution, establishing a particular

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type of union among the states or specifying any legal duties binding on the states other

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than a moral duty to mutually defend themselves in the upcoming war.

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Now, ironically, the past train of abuses that Jefferson cited in support of secession

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closely resembles the train of abuses inflicted on the South by Lincoln and his successors to prevent secession.

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And I quote, he has dissolved representative houses repeatedly for opposing with manly firmness his invasion of the rights of the people.

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He has refused for a long time after such dissolutions to cause others to be elected.

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He has elected. He has made judges dependent on his will alone. He has erected a multitude

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of new offices and sent hither swarms of officers to harass our people and eat out their substance.

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He has kept among us in times of peace standing armies without the consent of our legislatures.

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He has affected to render the military independent of and superior to the civil power. He has

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combined with others to subject us to a jurisdiction foreign to our constitution and unacknowledged

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by our laws, giving his assent to their acts of pretended legislation, for quartering large

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bodies of armed troops among us, for cutting off our trade with all parts of the world,

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for imposing taxes on us without our consent, for depriving us in many cases of the right

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of trial by jury, for taking away our charters, abolishing our most valuable laws and altering

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fundamentally our own legislatures, and declaring themselves invested with the power to legislate

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for us in all cases whatsoever. He has abdicated government here by declaring us out of his

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protection and waging war against us. He has plundered our seas, ravaged our coasts, burnt

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our towns, destroyed the lives of our people. He is at this time transporting large armies

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of foreign mercenaries to complete the works of death, desolation and tyranny. Evidently

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Actually the Civil War did indeed test whether a nation conceived in liberty could long endure.

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The next union cited by Lincoln is the government established by the Articles of Confederation.

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Now this document was ratified in 1781.

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The most significant fact about the Articles is that they specify both in the preamble

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and in the body that the union created is perpetual.

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Article 13 states, the articles of this confederation shall be inviolably observed by every state,

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and the union shall be perpetual, nor shall any alteration at any time thereafter be made

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in any of them, unless such alteration be agreed to in a congress of the United States,

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and be afterwards confirmed by the legislatures of each state. In contrast, however, Article

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Two states that quote, each state retains its sovereignty, freedom and independence

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and every power, jurisdiction and right which is not by this confederation expressly delegated

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to the United States in Congress assembled.

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This sentence is divided into two clauses, the first of which speaks of states retaining

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their sovereignty, freedom and independence and the second which reserves to the states

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powers and rights not delegated to the United States.

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Now resolving this apparent conflict between the two clauses,

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Article 2 and Article 13, as it respects the issue of secession, is completely unnecessary for our purposes.

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Suffice it to say that the articles expressed a desire for perpetual union

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while recognizing the independence of states

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and omitting any clear mandate or enforcement mechanism to prevent secession.

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They also established a decentralized federal system

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Without a strong executive power, which apparently failed to arouse any secessionist impulses in its short tenure,

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the Union established by the Articles of Confederation, in spite of its exhortation of perpetuity, was terminated by nothing other than a secession.

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The proposed Constitution provided that it would take effect upon the ratification of nine states.

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On June 21, 1788, New Hampshire became the ninth state to ratify.

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On that date, a new union was formed, exclusive of Virginia, New York, North Carolina and

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Rhode Island, which had not yet ratified.

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That new union seceded from the union formed by the Articles of Confederation in violation

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of Article 13, which barred any change in the Articles saved by unanimous consent.

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Significantly, the article's exhortation of perpetuity, repeated five times, was dropped

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by the New Constitution.

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In response to this embarrassing fact, Lincoln argues that the phrase a more perfect union

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in the preamble implies at least the perpetuity of the Articles.

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Evidently, the Framers either disagreed or chose to be silent on the matter.

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Their omission is especially significant since the term perpetuity was part of the full name

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of the Articles, quote, Articles of Confederation and Perpetual Union.

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Thus the framers could hardly have missed the term.

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Furthermore, a comparison of the two texts reveals that contrary to popular thought,

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much copying was done by the framers of the Constitution.

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Entire clauses from the articles were imported virtually word for word into the Constitution.

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The framers were clearly conversant with the text of the articles,

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but no mention of perpetuity appears in the Constitution.

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Neither does the Constitution itself explicitly say anything about state secession.

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It doesn't prohibit a state from leaving the Union, and it doesn't explicitly authorize a state to do so.

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Nor does it explicitly authorize the Federal Government to forcibly retain a state that has seceded.

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Secession was not discussed at the Constitutional Convention.

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According to Max Farren, this was probably a deliberate omission.

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It would have been inexpedient to have forced this issue in 1787 when the fate of any sort of a central government was doubtful, but this subject was probably not even seriously considered at that time.

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The legal history of the states therefore contradicts Lincoln's claim that the states had always been part of a superior union, which impliedly forbade secession.

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Such a claim is preposterous. At various times, the states had been loosely joined for their common defense without a constitution, and at other times, certain states were left entirely out of the Union.

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The very birth of the states as independent entities took place when they ratified a Declaration of Independence, which enshrined a right of secession as an inalienable right of the people of each state.

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We next turn to Lincoln's discussion of the Constitution as he believes it relates to secession.

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He argues that while states have reserved powers under the Constitution, presumably referring to the 10th Amendment,

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which he never mentions in any writing as far as I could tell, secession cannot be such a power since it is, quote,

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It is, quote, a power to destroy the government itself.

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This is, of course, hyperbole and abusive language.

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To depart from is to destroy, according to Lincoln.

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If the Union government was destroyed by secession, what was that entity that put a million troops

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in the field to stop it?

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Secession does not destroy the federal government.

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It merely ends its authority over a certain territory.

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It sets up a new government to take its place in that territory.

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Nevertheless, even if we meet Lincoln halfway and concede that secession involves a partial

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destruction of the power and scope of the Federal Government, how does that fact alone

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prove its unconstitutionality? It still remains for Lincoln to confront the limited and delegated

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nature of the powers of the Federal Government and the Ninth and Tenth Amendments which enshrine

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those principles into positive law. He dodges, quote, what is now combated is the position that

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It is not contented that there is any express law for it.

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Nowhere does Lincoln mention the Ninth and Tenth Amendments.

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Since those amendments carry much of the load of the argument for secession and were frequently

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cited by secessionists of the day, the failure of the brilliant lawyer to grapple with those

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clauses is strong evidence of his inability to do so.

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Not only does Lincoln ignore the Ninth and Tenth Amendments, he simply replaces them

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with an amendment of his own.

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States have no rights that are not expressly stated in the Constitution.

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It was precisely the point of those amendments, however, to ensure that no serious lawyer

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would ever make such an argument.

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The Ninth Amendment states, the enumeration in the Constitution of certain rights shall

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not be construed to deny or disparage others retained by the people.

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The exact purpose of the Ninth Amendment was to respond to Alexander Hamilton's argument

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that the expression of certain rights such as free speech and the right to bear arms

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would, by long-standing rules of legal interpretation, be construed to deny other possible rights.

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The Ninth Amendment was added to the Bill of Rights to make clear that rights other

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than those specified were indeed retained by the people.

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The most authoritative source for unenumerated rights is, of course, the Declaration of Independence.

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As we have seen, the Declaration explicitly supports the right of the people to alter

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or abolish government in the context of announcing a secession from Great Britain.

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Thus, the right of a people to secede from a larger polity would appear to be among the

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unenumerated rights of the Ninth Amendment.

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The Tenth Amendment states, The powers not delegated to the United States by the Constitution,

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nor prohibited to it by the states, are reserved to the states respectively or to the people.

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The Tenth Amendment complements the Ninth in providing a substantial argument that the

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right of secession is reserved to the states.

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The right to prevent secession is not delegated to the United States.

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In fact, the Constitutional Convention considered and rejected a provision that would have authorized

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the use of force against a recalcitrant state.

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On May 31, 1787, the Convention considered adding to the powers of Congress the right

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To call forth the force of the Union against any member of the Union failing to fulfill its duties under the articles thereof.

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The clause was rejected after James Madison spoke against it.

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A Union of the States containing such an ingredient seemed to provide for its own destruction.

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The use of force against a State would look more like a declaration of war than an infliction of punishment,

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and would probably be considered by the party attacked as a dissolution of all previous

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compacts by which it might be bound.

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Neither is the right to secede expressly prohibited to the states.

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Thus, under the Plain Meeting of the Tenth Amendment, the states retain or possess the

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right to secede.

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This textual reading is buttressed by the historical fact that the states obviously

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had the right to succeed in 1776 and to not expressly give up that right in ratifying

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the Constitution.

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To the contrary, several states, including New York, which suffered the most casualties

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on behalf of the North, I might add, in their acts of ratification noted that the powers

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of government may be re-assumed by the people, when so ever it shall become necessary to

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their happiness.

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The Tenth Amendment also makes clear that a writer power need not be expressly granted

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to the states by the Constitution, Robert Bork notwithstanding. Rather, the states are

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irrebuttably presumed to have such a power unless that power is expressly taken from

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the states by the Constitution. Lincoln was therefore in serious error in suggesting that

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the right to secede had to be spelled out in the Constitution. Now, Lincoln cites only

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There are only two clauses in the Constitution in arguing against the legality of secession,

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the Supremacy Clause and the Guarantee of Republican Government Clause.

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Each argument shares the same logical defect.

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The Supremacy Clause states, the Constitution and the laws of the United States, which shall

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be made in pursuance thereof, shall be the supreme law of the land, and the judges in

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every state shall be bound thereby.

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Anything in the Constitution are laws of any state to the contrary, notwithstanding.

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Now arguably this clause could be invoked to negate secessionary legislation as

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violative of federal laws against treason. But reliance on the supremacy

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clause entirely begs the question. The supremacy clause can be used as an

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argument against secession only if the Constitution requires a state

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to remain part of the Union. It does not obviously apply to a state that has left

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the Union. That's the argument from the supremacy clause in violation of what I

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I learned in Logic 101 assumes as a premise precisely what is in dispute, that the state

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is still part of the Union and thus bound by the Constitution's Supremacy Clause.

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Furthermore, in light of the arguments previously made that the Constitution allows secession,

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one can just as easily argue that the Supremacy Clause made illegal the Union Army's invasion

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of the South.

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Article 4 of Section 4 states, quote, the United States shall guarantee to every state

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in the Union a Republican form of government.

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Lincoln cited this clause to justify a war to prevent secession, quote, if a state may

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lawfully go out of the Union, having done so, it may also disguise the Republican form

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of government, so that to prevent its going out is an indispensable means to the end of

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maintaining the guarantee mentioned.

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And when an end is lawful and obligatory, the indispensable means to it are also lawful and obligatory, and that sounds like John Marshall for those who read some of his opinions.

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Nevertheless, Lincoln's argument again begs the question. The clause itself applies only to a state in this union.

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Thus, to apply the clause, one must first assume that a state may not lawfully secede.

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Those portions of the Guarantee Clause not cited by Lincoln are instructive.

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Quote, the United States shall protect each state from invasion and an application of the legislature or of the executive against domestic violence.

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Now he failed to cite the Invasion Clause, of course, since he himself was planning an invasion of the South.

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Nor could he very well justify that invasion of the grounds of preventing domestic violence since he lacked the consent of the Confederate legislatures, to say the least.

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Now, Lincoln's evasion of these critical portions of the guarantee clause are symptomatic of the central fallacy of his constitutional view of secession,

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his belief that the Constitution consonanced a military invasion of the South and resulting extended displacement of its civil authorities by military rule.

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To the contrary, the Constitution contemplates a structure of state-federal relations in which the states must take an active and voluntary part.

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This contrasts sharply with Lincoln's view of the Union as little more than a prism from which unhappy states are not allowed to escape.

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And I quote, the Union in any event won't be dissolved. We don't want to dissolve.

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And if you attempt it, we won't let you. With the purse and sword, the army and navy and treasury in our hands and at our command, you couldn't do it.

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Lincoln believes the Union is fully preserved, that escape is prevented by force. But is it?

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The Constitution uses the word state over a hundred times. It establishes not a prison-inmate relation,

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A complex political structure in which powers, duties and rights are divided between the federal government and the states.

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Some of the state functions listed in the Constitution are not capable of being effectively compelled by the federal government.

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Sending representatives to Congress and participating in the election of a president fall into this category.

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It is difficult to conjure an image of a state being forced at gunpoint to elect a senator.

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Although sometimes I get that feeling myself that I would have to be forced.

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Other functions listed are subject to being compelled.

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For example, enforcement of court decisions of other states.

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But that compulsion, however, in the presence of a recalcitrant state government

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requires the establishment of a federal military government in that state.

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While the issue of secession was perhaps not contemplated by the Constitution,

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Neither was forced union at the cost of military occupation of recalcitrant states.

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From the moment Federal troops occupied the South, those governments could no longer be considered Republican,

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meaning governments exercising limited powers delegated to them by the people,

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whose officials are answerable to the people in regular free elections.

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Thus, in militarily occupying a state, the Federal government breaches its obligation to guarantee to each state a Republican form of government.

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Government. Since the federal government necessarily breached the Constitution by

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engaging in war on seceding states, it is evident that the federal government had

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no authority to prevent such secession. To summarize, in 1861 the Constitution did

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not authorize the federal government to use military force to prevent a state

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from seceding from the Union. The Constitution established a federal

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There is no government of limited powers delegated to it by the people, acting through their respective states.

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There is no express grant to the federal government of a power to use armed force to prevent a secession.

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And there is no clause which does so by implication.

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To the contrary, the notion of the use of armed force against the states and the subsequent military occupation and rule of the states by the federal government

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does violence to the overall structure and purpose of the Constitution by turning the servant of the states into their master.

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Any doubts about whether the Federal Government had such a power must be resolved in favor of the states,

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since the Ninth and Tenth Amendments explicitly reserve the vast residue.

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For the Fourteenth Amendment arguably prohibits secession by implication.

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Nevertheless, that amendment, insofar as it can be interpreted to bar state secession,

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is tainted. It is the direct result of the illegal invasion and subsequent political

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domination of the South. Even the Fourteenth Amendment does not explicitly outlaw secession,

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and there remains a conflict between the Fourteenth Amendment and the Ninth and Tenth Amendments

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in this regard. This conflict should be resolved by reference to the doctrine of inalienable

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Social Rights, of which secession is won.

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Now, no doubt today's Supreme Court would rule secession to be treasonous and illegal,

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not to mention highly politically incorrect.

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However, the Supreme Court, being an agency of the Federal Government, has since John

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Marshall's day given the Constitution that interpretation which increases the power of

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the Federal Government over states and persons.

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This continual abdication of its purported role of guaranteeing constitutionally limited

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government is in large part responsible for the revival of interest in the theory and practice

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of secession.

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Far more important than what the Supreme Court would decide is the people's own understanding

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of the true meaning of the Constitution.

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We retain the inalienable right to alter or abolish a government destructive of our liberties.

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The existence of slavery in the Confederate States in 1861 cannot alter this truth.

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The Constitution did not forbid slavery prior to the passage of the 13th Amendment in 1865,

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and in any event, slavery no longer exists in the United States and therefore cannot

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be used to legally or morally justify war on a seceding state.

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Ultimately, a policy of violent opposition to secession is a policy of forced association.

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As with all forms of forced association, the stronger party will tend to exploit the weaker.

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Such is the case with the master-slave relationship.

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Such is the case when a state is forced to remain in the Union against its will.

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Both forms of forced association are immoral and both should be and are forbidden by the

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Constitution.

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Had the commander of the Union Army on entering Virginia on May 27, 1861 encountered the ghost of the finest American lawyer who had yet lived and asked for advice on the legality of his mission, Thomas Jefferson would likely have replied,

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Go back to your country, sir.