Secession and the Moral Compact

0:00It's very much of a pleasure to be here from the Citadel of the North and I want to thank Lew Rockwell and the Mises Institute for giving me the invitation to come and I also want to recognize my father Walter Riddle for making the drive up from Florida to attend the conference with us. I also want to say before I get into the paper that having met so many of you from all parts The idea of secession and the related doctrine of nullification or state interposition are part of the historical and theoretical dispute about original intent.

0:49They constitute serious questions, whether secession or interposition are included some in some way, in the constitutional compact, whether they are part of the intent of the founders, whether they are part of the constitution in spirit, if not in letter, even whether secession may become legitimate in the context of a constitution that is no longer constitutional, if judged by original intent. Central, of course, is the concept of American federalism, the division of authority and function between between and amongst the national government and the various state governments is at the very heart of our most pressing constitutional concerns. Moreover, American federalism is the conceptual framework secessionist and interpositionist doctrines must employ if we are to consider them part of the constitutional legal or moral compact.

1:44Historically speaking, the locus of power vis-à-vis the states and federal government has shifted in practical and juridical terms. In general, the locus of power has shifted over time from the states to the federal government. In light of this, nullification and secession may become constitutionally legal at one point, or may have been constitutionally legal at one point, say before the Civil War, even if they might no longer be. A plausible argument could have it the other way, since the Constitution's own amendment process, as well as revolution or civil war, can change the nature of the Compact itself. It is generally conceded that changes to the Constitution since the Civil War have not enlarged the legal basis for nullification or secession, at least from what it was already.

2:33Independently, however, revolution, secession or interposition could be morally just. For if we admit of the higher law, which I do here, at least for the sake of argument, the higher law which justified risking the Union as it was in order to contain slavery, then we must admit of the higher law which may again justify risking the Union as it is or may become in order to resist enslavement. Now, as in 1850, the words of William Henry Seward are appropriate. There are laws of various sorts which regulate the conduct of men. There are constitutions and statutes, codes mercantile and codes civil. But when we are legislating for states, all these laws must be brought to the standard of the laws of God and must be tried by that standard and must stand or fall by it.

3:25Hence, one may argue the merits of secession from a legal standpoint or from an absolute moral standpoint. The two standpoints might not be identical now, even if they once had been. In terms of the moral standpoint, secession is always a considered alternative for the thinking freeman, at least as a last resort, assuming he would maintain his freedom. Even if the so-called right wing controls Leviathan, it is of small consolation, little comfort whether the boot on one's back is red or true blue in color. Federal power simply cannot properly address or acknowledge the disparities that make us human, the distinctions that let us live. Only the acknowledgement of a dual federal and state sovereignty produces a situation in which liberal and conservative changes compete with each other on equal footing and do not subvert the whole edifice of constitutional government.

4:21So-called cooperative federalism is fine, so long as it is voluntary and non-coercive. Cooperation does not mean co-option, however, Nor may existential cooperation between federal and state levels of government change the constitutional basis of dual sovereignty. The founders believed in a minimalist state and the ultimate sovereignty of the people. They conceived of government as a necessary evil. The founders did not value government per se, they valued freedom. They did not value what government could do for them, but what they could do for themselves in an environment characterized by ordered liberty. Government was simply needed to protect the maximum possible extent of what they valued most, their liberty, liberty to pray and to praise, to minister and to enjoy fellowship, to tithe and to serve, liberty to work out one's own salvation with fear and trembling, and to fulfill the purpose of life as if there were one, liberty to love, to wed, to raise children in safety, to nurture and to pass on a goodly inheritance,

5:27Liberty to Work, to Build, to Produce, to Achieve and to Succeed. The word Federalism comes from a Latin root meaning Covenant. The Founding Fathers recognized the way people think and relate to one another is the most fundamental feature in the whole process of actual governance. Hence, Federalism was and is more than just a form. It evidences the Founder's most basic assumption concerning human affairs, namely, its grassroots nature. Localities create covenantal relationships with God and with each other, which preclude all but a limited role for governments. Moreover, Tocqueville reached the same conclusion and said that covenantal relationships comprise the strength of American-style democracy.

6:17While the Civil War may have altered the Federal-State relationship, it did not justify social revolution beyond the terms of peace or Actual Constitutional Amendment. For instance, the Civil War did not change natural law, common American Republican heritage, including the right to revolution, founders' intent, nor most of the original compact. As regards Federalism, the most basic mechanism for vertical check and balance, it is absolutely crucial to the operation of the Constitution itself as a moral compact. American Federalism may not be said to have undergone fundamental change on every issue. If anything, the existential fact that the 30 years following Reconstruction were laissez-faire indicates that the Federal Government gained no superordinate role over the states by virtue of the war alone.

7:05The existential fact that the courts did not apply the Bill of Rights to states until the 1930s and then only selectively through the 14th Amendment's Due Process Clause indicates the application is of much more recent origin than the Civil War. Courts did not even start to apply the 14th Amendment to activities by private companies and individuals until the 1950s. Indeed, liberal historians used the Civil War to exaggerate constitutional change and an associated social revolution in order to validate subsequent changes they approved and avoid defense of the measures on substantive constitutional grounds. The orbits of respective sovereignty between state and federal levels remain inviolable.

7:50Outside the particulars of revolutionary change, at least in terms of constitutionality, nothing new may contradict anything old. Certainly, it is possible for the moors of a people to evolve, and a society may voluntarily change the laws under which it lives to reflect the changing norms. The original position of norms and range of acceptable conduct, however, may not become unconstitutional per se within the orbit of state sovereignty, unless there is a change to the Constitution through revolution or bona fide amendment. This must be so, given that scheme of American federalism in which states represent separate societies of people. Indeed, the Constitution institutionalizes the co-equal status of states states as separate societal units and polities without regard to population.

8:43For instance, representation of the Senate is equal for big and small states alike. The fact that the original constitutional compact conceived of states as possessing power to determine socio-economic issues as fundamental as slavery testifies to the competency and legitimacy of state action on practically every matter not since removed by war or amendment from state purview. The 13 original states represented 13 different societies, Republican in form, but disparate in terms of the degree to which various rights were protected, in terms of crimes and punishments, in terms of how government impacted the everyday lives of the people. The societies held different values, and Congress and the courts recognized that different values required different sets of laws in every state.

9:33Moreover, the states joined the Union to better ensure their viability and self-determination, meaning the ability to engage in voluntary social evolution. No state ever voluntarily joined the Union to destroy what was unique about itself. States joined to enhance or secure their uniqueness and to improve social conditions voluntarily over time. If anything, joining the National Political Union was meant to ensure societal independence. States were supposed to govern themselves differently because their people and their circumstances differed. This was also true as the nation expanded westward. Only in the 20th century has existential disparity of laws and some values been challenged by the federal government through a reinterpretation of the Constitution.

10:22It stands to reason that difference is the stuff of Madisonian federalism. Without it, there is no federalism. and every difference of opinion ought not be regarded as a difference of Republican principle. Remember, the states had to ratify the Constitution and it was the Bill of Rights that had been the most important Federalist concession to gain anti-Federalist support. The people wanted the benefits of a stronger central government. They were skeptical, however, lest that new Federal government grow too powerful and threaten the liberty they already enjoyed in the states. On this basis, if it were ever constitutional in states for children to pray in public schools, then it remains constitutional, borrowing a change to the Constitution itself.

11:10This is true even if all 50 states change their laws to make it illegal to do so. Likewise, if it were ever constitutional for separate state societies to make laws regulating abortion, then it is ever constitutional for them to do so unless the Constitution is amended or a revolution ensues for that purpose. Punishment that was neither cruel nor unusual under the original constitution may not become unconstitutional simply because the mores of the people change and local laws regulating punishments change. In other words, people must be constitutionally able to change their mores back again. A state must be able to constitutionally revert to a previously constitutional position.

11:56It is absurd to think that if George Washington were here today, he would be unable to constitutionally do half the things he could have done when the Constitution read exactly the same. Mind you, I am not suggesting that laws might not or should not be different, but laws should not have to be different if constitutional amendment does not follow the law. The Civil War did not change our inherently conservative system of government based on a written Constitution. The Tribunal of Arms settled two questions that had plagued the country from its inception, slavery and secession. Northern victory meant that slavery was abolished. In addition, secession as a legal, peaceful alternative was denied within the organic framework of the Constitution.

12:45Emancipation was quickly validated by the 13th and 14th Amendments to the Constitution. Ironically, no similar constitutional validation exists concerning secession one way or another. For that matter, no constitutional mention exists regarding the closely related concept of nullification, also known as state interposition. In addition, the Tribunal of Arms, of course, always hears an appeal. Ironically, the Constitution and Federal Government have recognized legal secession under certain circumstances by recognition of the sovereign state of West Virginia formed out of Virginia. Vermont was formed by the inhabitants out of land claimed by New York and New Hampshire, again in revolutionary circumstance during the American Revolution.

13:31The Joint Resolution annexing Texas to the United States authorized Texans to form an additional four states out of her territory, something I understand they're not going to do. The nearly complete decline of American federal-republican system of government is not a product of the Civil War. Except for discrete changes, the relationship of restored states to the federal government remain exactly as always had been. The decline of federalism is a product of the 20th century of plebeian democracy, judicial activism, the decline of cultural values, and government income taxing authority. Many of these disintegrators were established in the progressive era. War and welfare have propelled them to corrosive heights. Moreover, the great ideological struggle with communism this century has affected us more than we may reckon.

14:23For Madisonian federalism to return, the factors causing its decline must be addressed. The most helpful rediscovery we could make is to learn that limited government is good government, and what a government need not do, it should not do. Dual sovereignty in the Constitution has it says it that the Federal Government guarantees a Republican form of government, whereas the advance or retreat of particular policies are subject only to the will of the people in the respective states, except as constitutionally prescribed or proscribed. Moreover, the wording and historical context of the Constitution is mostly proscriptive in nature, in terms of its effect on the people in several states. That is to say, everything not specifically prohibited is constitutional per se.

15:08The Founder's intent was to leave intact the maximum possible sphere of liberty. That is very different from prescriptive government, which defines the extent of liberty by defining what you can do. Anything not prescribed then requires permission. The Federal Government of the United States now acts in a prescriptive manner. If some do not recognize their impending slavery, it is because the tyrant who steals our freedoms is subtle, multi-faceted, sometimes benevolent and wears the mask of a smiling bureaucrat and a government social worker who has your supposed best interests in mind. Even if some of the laws we live under are good, the issue is where these laws should originate and by whom they should be administered. The situation has actually grown markedly worse since 1965 when the federal government began using preemption statutes.

15:59Augmented already by the power to raise huge sums of money through income tax, The government now preempts entire functional areas from state government purview and sets national standards to be enforced. Vast accretion of power to the federal government has occurred through this method, which represents a revolution in nation-state relations. There are now 14 distinctive types of total preemption statutes enacted by Congress, as well as eight categories of partial preemption. It amounts to nullification on a grand scale by the federal government of state and local laws. When the federal government determines whom you may hire, whom you may fire, and under what circumstances. When the federal government tells you what you can purchase and what you can sell, where you can use an item and what advertisements are acceptable to market it.

16:48When the federal government tells you who to rent to and what you may charge, who you may hire as a babysitter and how much social security taxes you'll have to put up for the privilege. When the federal government tells you what fuel to put in your car, who to consult for medical advice, and what advice you must take, then the federal government has reduced us all to its children and become our nanny state. All these things for our benefit are very nicely intended. It reminds me of the paternalistic rationale for the antebellum-south peculiar institution. Slavery is a positive good because it regulates the slaves much better than they could regulate themselves. Slavery is good because the masters care for his slaves better than private property. He cares for them as if they were their own children.

17:33Slavery is good because labor is rewarded by what the laborer needs, a roof, some food, a set of clothing, a pair of shoes, even conjugal visitations. Well, it is my contention that children such as there are belong to parents and not to the state. The vast majority of us, however, are no longer children and resent being treated as such. We may indeed not regulate ourselves as well as Big Brother. On the other hand, it will be the bed we make that we sleep in, and there is inherent satisfaction in that. The risk of failure is worth the success we truly call our own. Moreover, slavery is an unacceptable condition. Political slavery every bit as much as chattel slavery. Indeed, when one looks to the debates concerning the Fifteenth Amendment, the adoption of which, I admit, is highly dubious, The most persuasive rationale for extending suffrage to the freedman was that actual political representation, including the right to vote for one's own representative, was tantamount to staving off abject slavery by some other name.

18:39Point being, political slavery is necessary, albeit insufficient, to affect absolute subjugation of a people. Political slavery precurses serfdom, confinement to the pale or sale at the auction block. It was this sure knowledge that led the revolutionary generation to take extreme measures before such action became impossible. In hindsight, the revolution constituted secession from the mother country. Thirteen colonies revolted against the tyranny of their central government. If truth were relative, then subjective community standards are far the better way to go than a one-size-fits-all Federal version of truth. If the law should be living, meaning that it should change to address changing social needs, then it should be living where the people live.

19:29In effect, that is the function of state orbits to experiment, even to compete with each other in the open marketplace of ideas, so that the good will out to let people decide the way they should live. It would be useless to contend that anyone should be able to live anywhere and find everything to his or her liking. A place where everyone is happy is literally a place where no one is happy. At some point, people must be able to legislate their environment. That is your Jacksonian democracy and that is your populism, but it must be operative at the local level. People must be able to determine the nature of their schools and towns and to secure their property. For these are the vehicles through which they pursue happiness and derive a meaning to life. The liberal statist alternative is not the best solution for everyone, which elitists would like to think.

20:19Empirically, the statist solution devolves into tribalism and radicalizes factions that might otherwise constructively participate. What the federal government has done is to take a creative and dynamic process and create instead the divisiveness so apparently rife in this country. Under American Federalism, you may not get it right everywhere. Communities and whole states might prescribe or proscribe too much or too little, but you would get it right in many areas. Moreover, you would be assured of finding a place that catered to one's priority preferences. Today, it's wrong everywhere, and there is no place left at all for traditionalists. American federalism envisions disparities between the states, even on the most important matters.

21:08Oregonians should be able to decide the so-called right-to-die referendum. Californians should be able to deny state benefits to illegal residents. Coloradans should be able to determine state policy towards homosexuality or deny special legal protections for gay people and so on. Know that I have refrained from indicating my preference as to how the vote should go. Rather, I believe strongly that these and other matters belong to the states and are matters for each separate society to determine for itself. In the meantime, the Constitution of the United States should not be whipped about by the vigorous nature of each debate. National political mobilization of those with vested interest or vested concern need not occur every time someone somewhere challenges a norm or claims some new right.

21:58State boundaries were the fire breaks envisioned and explained by the founders to keep factions from ever spreading beyond them, to remove the political boundaries, so to speak, by imposing centrally planned and executed standards or by interfering with another state's prerogatives from outside, creates instability or tyranny or both. The American Republic thus falls prey to all the ancient ills that plagued other republics, especially large republics. Ills which Monsesquieu wrote about, and which the Founding Fathers erected the Federalist mechanism to preclude. Jefferson said we would probably need a revolution every 20 years or so, and by my math, we apparently are long overdue. Secession is one form of conservative revolution.

22:44The threat of it is a powerful incentive to the Federal Government to maintain its limited scope and to refrain from constitutional overreach. Secession is always, morally speaking, legitimate by the same rationale Jefferson used in the Declaration of Independence. Secession or revolution must obviously meet certain criteria, but its right in the abstract cannot be denied. Moreover, the founders themselves provided criteria by which to judge the proper occasion for action, both in terms of empirical precedent during the American Revolution, as well as in terms of written theoretical discourse. The Virginia and Kentucky Results were written by Madison and Jefferson in 1798. They are explicit in their delineation of dual sovereignty, by which state sovereignty is as inviolable as the federal government's.

23:33Notwithstanding questions of particulars, interposition is not only conceivable, it may be a duty incumbent. The threat of secession itself may be enough to cause the federal government to return to its proper role and thus reinstate the desired vertical balance within the federal system. Historically, secessionist movements have tended to perform this positive latent function. In 1785, for instance, while still under the Articles of Confederation, the United States abandoned the disastrous Jay Gardoke Treaty because of western secessionist threats. When the federalists exceeded constitutional authority by passing the Alien and Sedition Acts, similar threats were made, this time while the nation operated under the rubric of the Constitution. The issue was finally solved through the Jeffersonian political revolution of 1800.

24:22The election was an overwhelming repudiation of the extreme federalist party position of unitary federal sovereignty. Americans were gratified that secession or civil war were unnecessary, but the backdrop of revolutionary political commitment was essential to producing the first peacetime transition of power between parties in American history. In terms of a positive, latent, if not manifest function, secession may very well be a necessary and proper means of reacting to Federal encroachments. The Constitution has evolved this century without the aid of secessionist counterbalance. Hence, the Constitution has not evolved explicitly through amendment, civil war, or clear political mandate. Rather, it has evolved through force and threat of force by every single branch of the Federal Government, by activist presidents, by micromanaging congressmen and bureaucrats, by activist judges with social agendas.

25:18The people are now reduced to having to overcome the burden of constitutional amendment just to restore original intent. The liberty we have gotten is not the ordered sort the founders intended. It serves no purpose nor ends but our own destruction. We witness now the onset of social chaos sanctioned by government without the consent of the people to do it. The New Deal and Great Society transformed the entire country into one big political machine in which politicians parceled favors from the Federal Port Barrel or through regulatory agencies to the various special interest groups, which then scratched politicians' backs at election time. The point being, that power may not now be exercised by democratic majorities at all, consolidated, concurrent or otherwise. James Q. Wilson of UCLA and past president of the American Political Science Association, argues that elections have become less important because the real policy making is now done by courts, bureaucracies and legislatures operated by an ambitious political class with very little orientation towards public preferences.

26:22This equates to the development of a kind of American court party, so inimical to Republican institutions. If we are no longer actually represented, then we are taxed at average The two most discernible trends this century have been the growth of the federal government and the decline of what is known as Victorian values, industriousness, sobriety, self-control and modesty. The two trends are linked in that the concentration of power at the central level of government has debilitated state and local government's ability to foster healthy social climates or to maintain the institutional supports, family, church, school or neighborhood necessary to maintain and transmit the culture.

27:08Federal government action impedes the institutions of family and church, which have made communal life heretofore possible in America. The result has been crisis in American families and schools and dramatic increase in the incidence of social pathologies reaching epidemic proportions over the past 30 years. When we realize that counterculture communes of the 1960s were actually destroyed by internal problems, rampant violence, crime and drug addiction, we may fairly assess the nation's course today to be one of national suicide. In such an instance, it is the prerogative of state governments to take extraordinary actions for protection. We have the structural framework for self-government, but Washington has substituted a government of clerks, exactly what Tocqueville called administrative despotism.

27:58The failure to establish local standards results in the natural dispensation of all standards known to civilized man, including the protection of life, liberating the pursuit of happiness. The destruction of American federalism has resulted in the cultural disintegration we see evidenced around us. The restoration of federalism is the beginning of cultural renewal and moral regeneration. My assessment is that the political system is still sufficiently open and that the election of 1994 has dealt the enemies of freedom a blow. The strong action by states at this juncture as well as a clear ultimatum of the people to return power rightfully belonging to the states respectively or to the people will truly restore the states at last, will reinvigorate American federalism as conceived by the founders, will secure the blessings of liberty to ourselves and our posterity.

28:53Part of the solution is probably the organization of viable secessionist alternatives. The one certainty is that the Federal Government may not continue its wanton disregard for the Constitution or for the original intent of the Founding Fathers. If it does, the answer, my friend, is blowing in the wind. An answer as old as America and as true to her purpose, the purpose of free men living in accord with their God. And then the words of Julia Ward Howe's fourth stanza to the Battle Hymn of the Republic take a very different meaning. He has sounded forth the trumpet that shall never call retreat. He is sifting out the hearts of men before his judgment seat.

29:38Oh, be swift, my soul, to answer him. Be jubilant, my feet. Our God is marching on.