ON PART FIVE OF “A CONCURRING OPINION”
Dr. Edwin Vieira, Jr., Ph.D., J.D.
March 14, 2010
Timothy Baldwin’s “A CONCURRING OPINION FOR SECESSION (Part 5)” continues his argument that the Constitution is a “compact” among the States. Unfortunately, this point, even if proven, does not compel the conclusion that therefore the Constitution provides for, allows, or is subject to legitimate “secession” by any of the States. A “compact”, after all, is nothing more than a contract or like agreement between at least two parties. Denoting an arrangement a “compact” tells one nothing even about the agreement’s form, let alone about its substance. For instance, is the Constitution’s separation of powers among three co-equal branches of the General Government a necessary product of its being a “compact”, such that it could not have been otherwise? Of course not. Or is the States’ surrender of various of their sovereign powers in Article I, § 10 a necessary product of the Constitution’s nature as a “compact”? Of course not. Could the States have entered into a “compact” that explicitly or implicitly precluded “secession” entirely, or that allowed “secession” only according to some particular procedure? Of course they could have. On the other side, if the Constitution were not a “compact” but (in Mr. Baldwin’s words) “an independent government formed by one people/body-politic”, could it nonetheless have allowed for “secession” under some situations? Of course it could have. So, the question is not whether the Constitution can be denoted a “compact”, but whether (whatever it may be called) it provides for or is legitimately subject to “secession” or not. Thus, it is essentially useless to review the statements of various Founding Fathers and others as to whether the Constitution is some form of “compact”, because that conclusion, by itself alone, cannot answer the further question as to the propriety of “secession”.
Nonetheless, consideration of some of the statements that Mr. Baldwin lays out would be instructive—
1. Mr. Baldwin quotes James Madison as writing that “[e]ach State, in ratifying the constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act”. Well, then, even if the Constitution is a “compact” among previously fully “sovereign” and “independent” States, according to Madison each of those very States is, after entering into the “compact”, “to be bound by its own voluntary act”. “Bound”, one must conclude, means “obliged”, “compelled”, or “required” to conform one’s behavior in some manner to an ascertainable standard of conduct. But is a State that can “secede” at any time by her own unilateral decision from the “compact” formed by her own “voluntary act” in any way “bound” to that “compact” by that act?
2. Mr. Baldwin also quotes Madison, in relation to the Supreme Court, as writing that “[s]ome such tribunal is clearly essential to prevent an appeal to the sword [by the States] and a dissolution of the compact”. But why, in the absence of this “tribunal”, would the States ever need “an appeal to the sword” over matters in controversy amongst them, if (according to Mr. Baldwin’s theory) each of them can simply resort to peaceful “secession” on her own initiative, and none of the others can rightfully complain? If Mr. Baldwin is correct, the Supreme Court is supererogatory, and Madison’s fear chimerical. But if Madison is correct, then Mr. Baldwin must be wrong.
3. Mr. Baldwin further quotes Madison as describing the Constitution “less as absolutely new, than as the expansion of principles which are found in the Articles of Confederation”. Then, Mr. Baldwin adds with great emphasis, “Observe: the US Constitution expands the principles of the Articles of Confederation--NOT contradicts them!” With which conclusion I concur: The Articles provided for a “Union”; and the Constitution provides for “a more perfect Union”. The Articles limited the States’ ability to change the terms of the Union, which the Articles described as “perpetual”. Article XIII. And although the Constitution does not describe its “more perfect Union” as “perpetual”, it also limits the ability of the States to change the terms of their “compact”. Article V. (One must, of course, conclude that, if the original “Union” under the Articles was to be “perpetual”, “a more perfect Union” under the Constitution must be intended to be of no shorter duration.) Where, though, in these parallels does one find any confirmation of Mr. Baldwin’s theory of “secession”?
4. Mr. Baldwin then asserts that “the men attending the constitutional convention acknowledged that the US Constitution would preserve a confederacy form of government, whereby the states retained sovereignty of Nations, just as they did under the Articles of Confederation”. But no one who actually consults either the Articles or the Constitution can possibly conclude that “the states retained [the full] sovereignty of Nations” under those “compacts”. To the contrary: The States transferred many of their original sovereign powers to Congress (under the Articles) or to the General Government (under the Constitution), leaving the States with only partial and incomplete sovereignty, and to some degree dependent upon Congress or the General Government for the performance of those powers of sovereignty that they (the States) surrendered. So if, as Mr. Baldwin urges, the arrangements under the Articles and the Constitution must be denoted “a confederacy” or “a confederate republic”, then it follows as the night the day from those documents that “a confederacy” or “a confederate republic” does not require that each member-state should retain her full sovereignty and independence. And if some sovereignty can be surrendered, then the supposed sovereign power of “secession” can in principle be surrendered—the existence of which surrender depends, not upon the mere name attached to the “compact”, but upon its specific terms.
5. Mr. Baldwin then quotes Emer de Vattel for the proposition that
[S]everal sovereign and independent states may unite themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect state. They will constitute a federal republic: their joint deliberations will not impair the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent, when he is obliged to fulfill the engagements which he has voluntarily contracted.
Well, that frames the questions, does it not? Namely, (i) whether in ratifying the Constitution, the States, “in certain respects, put some restraint on the exercise of [their sovereignty], in virtue of [their] voluntary engagements”; and therefore, although still in some sense “free and independent”, are nonetheless “obliged to fulfill engagements into which [they have] voluntarily contracted”. And (ii) whether one of those “certain respects” is “secession”. In framing these questions, though, Vattel did not answer them. But he surely taught that merely calling the arrangement under consideration a “confederacy” does not answer them, either.
6. Mr. Baldwin then contends that Daniel Webster “changed his tune completely” regarding “secession”. From the evidence presented, though, I doubt it. Even assuming for purposes of argument that Webster did “change[ ] his tune”, so what? That would prove no more than that at least part of the time he had been wrong. The question would nonetheless remain, “At which time was he right?” It certainly does not follow with apodictic certitude that, because he changed his mind, his earlier opinion was incorrect. Temporal sequence and intellectual acumen do not necessary go hand in hand. (Also, as Mr. Baldwin knows perfectly well, one can never confidently extrapolate a lawyer’s personal beliefs from some argument he may have made to a court while trying to win a case for his client.)
Mr. Baldwin also quotes Webster as saying that “[a] bargain cannot be broken on one side and still bind the other side”. Again, I am not sure what ideas Webster may have entertained in the recesses of his mind on that occasion. But, typically, when one party breaches a contract, the aggrieved party does not simply shrug his shoulders and walk away, but instead attempts to enforce the contract either through litigation or by direct action. (And, of course, when he attempts to enforce the contract he may not himself breach it.) So, if one State or group of States violated the “compact” of the Constitution, the normal remedy for the aggrieved States would be to remain in the Union and seek enforcement of the Constitution against the misbehaving State or States through whatever tribunal and with whatever remedies the Constitution provides, not to “secede” from it.
7. Finally, Mr. Baldwin asks
what is the effect of the union being a federal compact assented to by the sovereign states? The effect is what the unionists deny: that each state has the right to judge for itself whether the compact has been breached and what remedies it will institute and seek, namely, secession.
Yet the Constitution’s being “a federal compact” does not, by itself alone, necessarily entail any of the “effect[s]” that Mr. Baldwin lists. Rather, whether any of those “effect[s]” exists must depend entirely upon the particular terms of the Constitution, not upon the mere name that can be attached to that document. It may be that each State initially has “the right to judge for itself whether the compact has been breached”—for the aggrieved party usually notices the problem first of all, whether the problem arises under a “compact” or some other arrangement. But the aggrieved party alone generally does not have the final say with respect to whether an actual breach has occurred or to what remedy for a proven breach it may be entitled. Even an arguably aggrieved party cannot be licensed to be a judge in its own case.
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And this is absolutely true when the “compact” itself specifies a tribunal to hear the case and provide appropriate remedies—which Mr. Baldwin himself, quoting Madison, tells us the Constitution does, so as “to prevent an appeal to the sword and a dissolution of the compact” (as described above). Therefore, “secession” will be an appropriate remedy for violations of the Constitution only if the Constitution provides for it, and then only if the tribunal the Constitution designates to hear the case determines as much. “Secession” will not be an appropriate remedy in any eventuality simply because the Constitution can be called a “compact”.