"The principle, on which the war was waged by the North, was simply this: That men may rightfully be compelled to submit to, and support, a government that they do not want; and that resistance, on their part, makes them traitors and criminals.

    No principle, that is possible to be named, can be more self-evidently false than this; or more self-evidently fatal to all political freedom. Yet it triumphed in the field, and is now assumed to be established. If it really be established, the number of slaves, instead of having been diminished by the war, has been greatly increased; for a man, thus subjected to a government that he does not want, is a slave. And there is no difference, in principle --- but only in degree --- between political and chattel slavery. The former, no less than the latter, denies a man's ownership of himself and the products of his labor; and asserts that other men may own him, and dispose of him and his property, for their uses, and at their pleasure." – Lysander Spooner (Nineteenth-Century lawyer, abolitionist, entrepreneur)

 The Consent of the Governed

Article by Micha Petty
 

The question at the root of many "Civil War" debates is the legitimacy of secession itself.  People occasionally inquire as to the primary reasons for the Southern secession of 1860.  While that is a worthwhile topic, it is a separate one from what this article attempts to address.  In the interest of taking things in order- this article is about the "consent of the governed.”  That is to say- before we ask "why" the states chose to secede, let us clear up whether secession is right in and of itself.  The serious student of history will need an answer to this question, and- if the answer is that the States should never have tried to secede because it was illegal or immoral- further studies will be seen through those eyes.  This is, therefore, an issue that must be discussed so that other points of debate may be built upon an understood foundation.

First, understand that the South was not at all unique in it's secession.  Many countries have been formed so.  For example, Ireland seceded from the British empire; Norway seceded from Sweden; Texas seceded from Mexico; Portugal seceded from Spain (they had to fight four "civil wars" to succeed at that one); Panama seceded from Columbia... the list goes on.  The point is- secession is one of the ways countries are formed.  Sometimes it happens without military engagement- more often it happens by bloodshed.  The fact that a country has to go to war to earn their independence does not indicate that their cause is not just.  Americans had to effect what could be called an "armed rebellion" in order to gain our independence in the late eighteenth century.  Rarely will Americans debate the justice of that cause, but even more rarely do they stop to realize that the Confederacy attempted to accomplish the same essential thing- the withdrawal of the consent of the governed.  Many people glibly counter all secession debates with the comment that "this issue was decided in the 1860s."  They seem to imply by that assertion that the Union army winning in the field somehow proves secession was wrong.  However, the fact that the Confederacy was overcome in the field after a long and arduous engagement proves only that the Union had superior numbers and ordnance from which to draw. 

Many people taint the secession topic with the fact that the South struck the first blow.  The Confederacy was established in 1860; and, as you may know, the Civil War began at 4:30 a.m. on the 12th of April, 1861 when General Beauregard (of Louisiana) ordered his men to open fire on Fort Sumter.  Admittedly, the Confederates drew first.  Incidentally, the Union troops were warned of the attack by the Confederates and there were no casualties, save a horse.  There were those, among them Secretary of State Toombs, who avidly disagreed with launching the attack, saying that we would be "striking a hornet's nest that extends from mountain to ocean."  He felt it was unnecessary and put the Confederacy in the wrong.  Many people today still feel the same way.  There were others that felt that the war was coming no matter what happened, and that it was best to have the time and place of engagement be of the South’s choosing, since it was outnumbered and out-gunned.  Additionally, Virginian leaders had said that we would need to "strike a blow" if we would have them join us.  There were many who felt that the attack was necessary.  Ultimately, the Confederates choose not to permit a Union fort inside their territory.  Similarly, George Washington would doubtless not have permitted a British fort just outside New York.  In the interest of thwarting endless debates, let us say, for the sake of avoiding argument, that the South should have found another way. While that may or may not be true, that point is worth conceding for now so that we may move on to the more central issues. The assertion at hand is that- regardless of who struck the first blow- the right to secede is as moral and inherent as the right to keep and bear arms.

It boils down to one concept: Does a just government get its powers by the consent of the governed? If so, then how could the very people who give that government it's power not have the right to withdraw from that nation?  They do, in fact, continually retain that right under all circumstances, as Mr. Lincoln's eloquent rhetoric above suggests.  Our country's framers thought along this same vein.  Our Declaration of Independence states:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights... That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government... in such form, as to them shall seem most likely to effect their Safety and Happiness."

Consider the question from another angle: If the people who make up a nation concur that the government no longer is representative of them but rather imperialistic, do they not have the right- nay, duty- to withdraw their consent and therefore their citizenry from that nation?

Generally, this truth, when stated, is countered most frequently with legal arguments.  The argument often runs along the line that when the states ratified the Constitution, they forfeited their sovereignty (to at least some extent) by setting up the Constitution as the "supreme law of the land."  One of the many problems with that argument is the fact that the 'supremacy clause' in the Constitution was never intended to supersede the rights of the people.  The Constitution declares itself to be supreme in order to establish that there would be no rival federal government within the same jurisdiction.  The intent was that neither congress nor the States could pass a law that superseded the Constitution.  It says that "This Constitution, and the laws of the United States which shall be made in pursuance thereof... shall be the supreme law of the land."  It does not say- nor does it mean- "When Congress passes acts that are unjust and unconstitutional, all people within the political boundary of the United States shall be subject to those laws without redress."  It also does not set the Constitution up as irrevocable.  It simply clarifies that all government was to be shaped by this document and not rivaled by other alliances.  The southern states acted appropriately according to the Constitution by seceding rather than attempting to create a rival supreme entity within the jurisdiction of the current confederation.  Once they seceded, they had removed themselves from the jurisdiction of the Constitution entirely, and were no longer at odds with it. 

Many of our framers thought similarly.  Thomas Jefferson authored "The Kentucky Resolutions of 1798," which stated:

"Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes -- delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress." [emphasis mine]

Similarly, James Madison drafted the "Virginia Resolution of 1798," which asserted:

"That this Assembly [the Virginian Senate] doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

 ...That a spirit has in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that implications have appeared of a design to expound certain general phrases (which having been copied from the very limited grant of power, in the former articles of confederation were the less liable to be misconstrued) so as to destroy the meaning and effect, of the particular enumeration which necessarily explains and limits the general phrases; and so as to consolidate the states by degrees, into one sovereignty, the obvious tendency and inevitable consequence of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy."

So we see that men who were privy to the Constitution as it was being drafted:

• did not feel that the 'supremacy' clause meant 'unlimited submission' to the central authority.
• felt that the federal government was manifesting a penchant for construing the Constitution incorrectly in order to enlarge their powers.
• were not in favor of transforming their present republican system into an 'absolute' or supremely powerful government.
• felt that the people have the right- and duty- to arrest the progress of evil through their collective power as sovereign States.
• that the States had the necessary and inherent right to judge for themselves when there had been a breach of their liberties.

If the 'supremacy clause' meant what many centralists portray, there would be no redress from the inevitable pull of the federal government's authoritarian tendency.  If we are to have any redress, it would by nature stem from our inherent sovereignty.  That sovereignty that enables us to 'nullify' or 'interpose' on behalf of our citizenry is the same sovereignty that will always equate to an inherent right to secede, when 'any form of Government becomes destructive of these ends."

Centralists often espouse the idea that the Constitution was a continuance of the Articles of Confederation. They cite the wording of the preamble that refers to a "more perfect union," which allegedly means that they were simply strengthening the existing union.  While the two documents are certainly related, it is far too strong of a statement to say that one is simply a continuance of the other.  At any rate, it would seem that their motives for asserting this are to claim that the Union was therefore permanently binding.  That claim is based on the fact that the former contract referred to itself as "Articles of Confederation and perpetual Union."  A study of the historical evidence, however, would conclude that the word perpetual merely refers to there being no set time limit on the contract.  Noah Webster's 1828 Dictionary gives a definition of perpetual as: "Continuing or continued without intermission; uninterrupted; as a perpetual stream; the perpetual action of the heart and arteries."  Describing the action of the heart as perpetual does not mean that it will never stop beating- it simply means that it is not an 'off-again, on-again' action.  Naturally, those who composed the instrument hoped it would endure, but it would be too much of a stretch to say that the vehemently individualistic citizens who wrote in Article II of the Articles of Confederation were people who intended for those who agreed to it to be bound to anything that would harm them.  That Article states, "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled."  Notice that they 'retained' their sovereignty, indicating that they were known to already be sovereign.  Considering the aforementioned Article II  and Amendment X of the Constitution, coupled with Madison's complaints about certain peoples "design to expound certain general phrases so as to destroy the meaning and effect,"  any correlation between the two instruments would seem to support secession, since it was never explicitly prohibited in either.

Lest any should think this position unique, let us look at the words of another man who was alive at the time and privy to the motivations of the men who entered into the Constitutional Union.

"It depends on the state itself to retain or abolish the principle of representation, because it depends on itself whether it will continue a member of the Union. To deny this right would be inconsistent with the principle of which all our political systems are founded, which is, that the people have in all cases, a right to determine how they will be governed.

This right must be considered as an ingredient in the original composition of the general government, which, though not expressed, was mutually understood…"  - William Rawle, A View of the Constitution (H.C. Carey and Lea, Philadelphia, PA: 1825), p. 296

Interestingly enough, that quote is from a textbook that was used at West Point- a Federal Academy, circa 1825. William Rawle's Views of the Constitution was used to teach Constitutional law at that time. Mr. Rawle was thirty years old when the Constitution was adopted, and the book in question was widely endorsed at the time by political journals such as the North American Review (in Boston).  Rawle was not at all alone in this view. Indeed, this is congruous with Jefferson's words in the Declaration of Independence. Rawle was simply restating a widely understood moral principle. The idea that the Articles of Confederation or the Constitution of the United States precluded the states sovereignty was not in the minds of the men who wrote those documents, based on the words of the men who were alive and privy to the political clime of the time. The concept of an irrevocable union is an idea put forth by those that hold that view themselves, and project it onto the men who framed those unions.  Indeed- entertaining such a concept is nothing less than an attack on our standing as free men.

Let us set aside the words of men passed, for a moment. Seek within yourself. Our states have always been intended as a direct representation of the people within them. If your state- that is to say, if the people of your state- agree within themselves that the government to which they have associated and submitted themselves is no longer serving them but rather seeking to dominate them; do they not have the inherent right 'endowed by their Creator' to secede from it's authority- regardless of the letters on any page?  Can morality- the rights which we hold so dear- be legislated into or out of existence?  By way of analogy, say that you vote for a certain group of politicians. Those politicians enact laws that say you cannot defend your family from attack. This law is contrary to the laws of God and good conscience- are you not bound to disobey it? Consider Daniel and the Lion's den, where God's Word records our responsibility to refuse submission to evil edicts. 

The states never abrogated their sovereignty. Yet, let us say for the sake of argument that they technically did sign that away.  Does that mean that they are, in fact, no longer sovereign? Under what circumstances do the People lose their inherent sovereignty?  The truth is- under no circumstances do people cease being sovereign. No law nor letter nor union can ever take away a right that is 'endowed by our Creator'.
 

In conclusion, here is the question again: Does a just government get its powers by the consent of the governed; and- if so- then how could the very people who give that government it's power *not* have the right to withdraw from that nation?   The answer is: a just government can only get it's powers from the consent of the governed.  Furthermore, they do have every right- legal documents notwithstanding- to withdraw that consent.

Dio Vindice!

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Special thanks go to:

The Kennedy brothers for their references to prior historical instances of secession in their book The South Was Right.

Dr. Thomas E. Woods, Jr. for references available on the lectures housed in our media room, and in his book, The Politically Incorrect Guide to American History.