Timothy N. Baldwin, JD.
February 11, 2010
Anti-Secessionist Argument #2: The US Constitution Is Not a Federal Compact of States/Bodies-Politic, but Is an Independent Government Formed by One People/Body-Politic, Without Regard to State Powers.
This position is in actuality the main crux of the unionists. The reason that unionists must rely on this argument is because if in fact the constitution is a federal compact assented to by the states in their individual and independent capacity as a sovereign state, then political maxims held true in American jurisprudence prove that those same states may secede from the union in like manner that they entered: through the UNILATERAL action of that body-politic.
Definition of “State”
Before moving forward on the substance of this topic, we must understand what a “State” is. “[S]tates are bodies politic, societies of men united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength. Such a society has her affairs and her interests; she deliberates and takes resolutions in common; thus becoming a moral person, who possesses an understanding and a will peculiar to herself, and is susceptible of obligations and rights.” Vattel, 67; See Also, 2 Burlamaqui, Part 1, ch. 4, sec. 9. The word “state” itself has a legally and politically operative meaning, including the duties and rights to protect, preserve and perfect itself perpetually.
Many people confuse or misapply “states” to mean “state governments” (normally in a condescending manner, like, “those evil state governments!”) This is simply not true. A state is a moral person (a natural law concept) composed of a complete society with rights inherent in that political composition, such that the state acts as one person under the authority of that society of people; possessing rights and obligations. So, when the question is asked, was the US Constitution created by States or “the people,” that is an incorrectly and uneducated form of a question. “The question should be this: was the US Constitution formed by the people of several states as individual bodies-politic, or was it formed by the people as one body-politic?” To answer this question, the definitions and applications must be understood properly.
Another important matter that has to be understood is the Equal Footing Doctrine. I have heard some people attempt to argue that even if the original thirteen states were sovereign, all of the new states that joined the union were never sovereign and should not be treated as such under the constitution. They attempt to undermine the sovereignty of states today, as if state sovereignty has sort of expired over time. (This is fitting since most federal politicians attempt outdate the true meanings of the constitution itself. Is it any wonder that the people are confused on this as well?) This theory is pure nonsense. It contradicts the Equal-Footing Doctrine, which says, “a state admitted to the Union after 1789 enters with the same rights, sovereignty, and jurisdiction within its borders as did the original 13 states.” Bryan A. Garner, ed., Black’s Law Dictionary, Abridged Seventh Edition, (St. Paul, MN: West Group, 2000), 441. This has been repeatedly confirmed by the US Supreme Court: “This Union was and is a union of States, equal in power, dignity and authority, each competent to exert that residuum of sovereignty not delegated to the United States by the Constitution itself…[T]here is to be found no sanction for the contention that any state may be deprived of any of the power constitutionally possessed by other states, as states.” Coyle v. Smith, 221 U.S. 559 (1911) (emphasis added).
While you may want your state to be dependent on the federal government so you can help destroy the states and grant more power to the almighty Fed, this does not mean that the other states do, nor does it mean that your state is not sovereign in its powers.
The Importance of the Issue
Let me state the conclusion first: the US Constitution was formed NOT by one body-politic of one American nation, but rather, the US Constitution was formed by individual, several and separate bodies-politic of states through their ASSENT in the form of a FEDERAL COMPACT. The conclusions drawn from this fact reach into the very heart of issue of secession. But you need not take my word for the issue stated. Consider one of the United States’ most well-known and respected statesmen--one who advocated against the right to secede: Daniel Webster.
During the early 1800s, this very issue of secession was being highly debated, and Daniel Webster was the main spokesman for the unionist’s position. In his public discourse against John Calhoun regarding the nature of the union, secession and nullification, Webster held strong and firm on the conclusion that the states’ do not have a right to secede. In response to South Carolina’s resolution in 1817, “That, as in all other cases of Compact among Sovereign parties, each has an equal right to judge for itself, as well of the infraction as of the mode of redress,” Webster puts the anti-secessionists/nullification position this way: “this conclusion [in favor of nullification and secession] requires for its support…accession and of Compact between Sovereign powers; and, without such premises, it is altogether unmeaning.” Alexander Stephens, A Constitutional View of the War Between the States, 307. Put inversely, “this conclusion requires for its support accession and of Compact between Sovereign powers; and with such premises, it is altogether meaning.”
To Webster, proving secession would require turning “the [constitution] into a mere compact between sovereign states.” Daniel Webster, American History Leaflets, Colonial and Constitutional, Ed. Albert Bushnell Hart and Edward Channing, No. 30, Constitutional Doctrines of Webster, Hayne and Calhoun, (November, 1896), 39. To be certain, Webster’s unionist’s views were based upon the notion that the US Constitution was NOT a federal compact assented to by sovereign states, but rather was an independent, sovereign, self-sustaining government created by one body-politic to the exclusion of the states and their agents (state governments).
Indeed, Webster was viewed as the “‘Great Expounder of the Constitution,’ with the Consolidationists of that day.” Stephens, 337. As will be seen, Webster’s argument and his credentials on this matter are significant, because several years later after the Webster-Calhoun debates, Webster completely changed his stance on state sovereignty and the right to secede, as I will detail later.
In truth, Joseph Story was correct when he stated, “[t]hese are momentous questions, and go to the very foundation of every government founded on the voluntary choice of the people; and they should be seriously investigated, before we admit the conclusions, which may be drawn from one aspect of them.” Joseph Story, Nature of the Constitution – Whether A Compact, Book 3, Chapter 3, sec. 332. These questions so momentous because were it accepted that the US Constitution was in fact a federal compact created by the assent of sovereign states, then the resulting conclusion would confirm that those states have the right to secede from the compact thus formed, as expressed by the expounders of the Law of Nations.
Assent of the States
So, did the states (individual and several bodies-politic) assent to the US Constitution as a federal compact, or did the people as one mass body-politic create an independent and perpetual government at the expense or exclusion of state sovereignty, power and authority, removing from their power the right to secede from the union? In truth, every aspect of the ratification of the US Constitution was federal in nature, meaning, formed by existing independent and sovereign states (and even all of the elections regarding the federal government today are conducted on state levels, not that a mode of election determines sovereignty--it was just an observation). The people of the states preferred the federal form of government because they knew the natural law maxim that every state should “avoid…whatever might cause its destruction,” for this most conforms to the principles of freedom and self-government. Emer De Vattel, The Law of Nations, (Indianapolis, IN, Liberty Fund, 2008), 88.
certainly forming one nation under one body-politic would destroy the
states and would have created a worse situation for the states than they
were facing under Great Britain. At least with Great Britain, their tyrant
was 3,000 miles across an ocean. Forming a consolidated sovereignty in
your home town was pure madness. It was largely for this reason that many
people of the states proposed an even more divested system of delegated
power for external purposes. They advocated that the union be composed
of not one union of states, but of several unions of states, and this
was during a time when only thirteen states existed, being comprised of
only a few millions of people.
(Now we have 50 states and hundreds of millions with hardly any commonality to speak of! When will your reason begin to apply the maxims of freedom to our current situation?)
“[W]e must of necessity resort to separate confederacies of distinct portions of the whole.” Alexander Hamilton, FP 1.
“[It is] suggested that three or four confederacies would be better than one.” John Jay, FP 2.
“[The States should be] divided into several confederacies… The ideas of men who speculate upon the dismemberment of the empire seem generally turned toward three confederacies.” Alexander Hamilton, FP 13.
“[There are] advocates for three or four confederacies.” John Jay, FP 5.
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Please, do not make the mistake of equating “union” to “freedom.” This is a serious fallacy and has been the ploy of tyrants who would seek to accrue power to themselves by consolidating sovereignty into what always becomes untouchable and unreachable. Governments and unions are only instituted to protect freedom. Where those governments and unions no longer serve their purpose, the people who possessed the power to join that union have the power to disjoin.
Go to www.libertydefenseleague.com for articles, speeches and interviews of Timothy Baldwin.
© 2010 Timothy N. Baldwin, JD - All Rights Reserved
Timothy Baldwin is an attorney from Pensacola, FL, who received his bachelor of arts degree at the University of West Florida and who graduated from Cumberland School of Law at Samford University in Birmingham, AL. After having received his Juris Doctorate degree from Cumberland School of Law, Baldwin became a Felony Prosecutor in the 1st District of Florida. In 2006, he started his own law practice, where he created specialized legal services entirely for property management companies.
Like his father, Chuck Baldwin, Timothy Baldwin is an astute writer of cutting-edge political articles, which he posts on his website, www.libertydefenseleague.com. Baldwin is also the author of the soon-to-be-released book entitled, Freedom For A Change, in which Baldwin expounds the fundamental principles of freedom believed by America’s forefathers and gives inspiring and intelligent application of those principles to our current political and cultural standing.
Baldwin is involved in important state sovereignty movement issues, including being co-counsel in the federal litigation in Montana involving the Firearms Freedom Act, the likes of which is undoubtedly a pivotal and essential ingredient to restoring freedom and federalism in the states of America. Baldwin is also a member of freedom organizations, such as The Oath-Keepers, and believes that the times require all freedom-loving Americans to educate, invigorate and activate the principles of freedom within the States of America for ourselves and our posterity.
Web site: LibertyDefenseLeague