Compact or Collectivism

By Al Benson Jr.

Underneath all the national anger in the country over Comrade Obama’s supposed ineptitude (I think much of it is by design rather than ineptness) there also simmers a strong disagreement over just how we should interpret the Constitution. Now I have to admit up front that I have some problems with the Constitution. I find myself much more in line with the thinking of Patrick Henry that I do with that of Alexander Hamilton. In fact, a couple years ago I did a whole series of articles on the Constitution for a blog spot that pulled the plug awhile back. Even though the original blog spot that carried them has gone by the wayside, other sites picked them up and they are still out there. You can find them on http://www.dixienet.org and http://www.spofga.org and I even found one on sonsoflibertyandamericanrevolution.blogspot.com Some of these will probably shock some folks because you never read anything like this before, but if you can, plow through them a little at a time anyway.

In my “huntin’ and peckin’” for some of this material I came across a brief article posted by the Ludwig von Mises Institute simply entitled United States Constitution. It stated that: “By the early 19th century, two schools of thought regarding interpretation of the Constitution had developed, commonly referred to as the ‘Nationalist’ theory and the ‘Compact’ theory. The Nationalist theory argues that the Constitution formed a sovereign nation, under which the states are subordinate in power to the federal government. Thus, the powers of secession and nullification, according to the theory, are unconstitutional. Prominent advocates of the Nationalist theory include Alexander Hamilton, John Marshall, Daniel Webster, and Abraham Lincoln.”

The article then went on to define the other theory, the Compact theory, by saying that: “The Compact theory argues that the Constitution was a compact, that is, the voluntary agreement of thirteen sovereign states to create a general government to take on specific roles. According to the theory, the compact was voluntary and the states retain their sovereignty, so any state has the right, under the Constitution, to secede from the Union. Some proponents of the Compact theory also argued that nullification, that is, a state’s refusal to obey a law of the general government, was also constitutional. Prominent advocates of the Compact theory include Thomas Jefferson, Abel P. Upshur, and Jefferson Davis.” That briefly sums up the two positions and as long as we live under this Constitution (which the federal government almost totally ignores except at swearing in ceremonies) my natural choice would be the latter rather than the former.

I have been told that most of the founding fathers were of the Nationalist persuasion, Hamilton, Madison, Washington, and this may be somewhat accurate. If so, then there is all the more reason for the articles I wrote that are previously mentioned regarding the Constitution. However, that is not where Thomas Jefferson was coming from. In an article on the Tenth Amendment Center website, writer Gennady Stolyarov II wrote of Jefferson that: “Jefferson portrayed the Union as voluntarily entered into by the states; the states were ‘not united on the principle of unlimited submission to their general government’ (KR 153).”

He continued: “The Union was created by the ratification of the Constitution, which served as a ‘compact’ by which the states ‘delegated…certain definite powers’ to the general government (KR 154). The government’s exercise of powers not expressly granted to it by the Constitution was thus illegitimate . For Jefferson, the Constitution both defined and limited the Union’s nature and essence.”

And Jefferson gave a warning which has almost been totally ignored when he warned that the federal government should never be “the exclusive or final judge of the extent of the powers delegated to itself (KR 154), since that would allow the government to define the scope of its powers…”

The Future of Freedom Foundation has a website that carries different articles relating to freedom. In one that was posted on December 20, 2011, author Tom Woods Jr. reviewed a book written by Luigi Marco Bassani called Liberty, State, & Union: The Political Theory of Thomas Jefferson. Mr. Woods observed that: “To assess Jefferson’s endorsement of the Constitution we need to bear in mind the very limited consequences that its ratification entailed in his view. In an era in which ‘Tenther’ (i.e., a supporter of the Tenth Amendment to the Constitution ) has, absurdly enough, become a term of derision, Jefferson’s approach to the Union is a splash of cold water: The true theory of our constitution is surely the wisest and best, that the states are independent as to everything within themselves, & united as to everything respecting foreign nations. Let the general government be reduced to foreign concerns only, and let our affairs be disentangled from those of all other nations, except as to commerce, which the merchants will manage the better, the more they are left free to manage for themselves, and our general government may be reduced to a very simple organization, & a very inexpensive one; a few plain duties to be performed by a few servants…

Woods then observed that Bassani turned to the discussion of states rights. He says: (“States’ rights,” a phrase Jefferson himself used, is of course a shorthand term; Jefferson understood as well as anyone that states do not have rights in the sense that individuals do.) Jefferson was a principal architect of the compact theory of the Union, which conceives the states as a collection of self-governing, sovereign communities (the states)). (More precisely, it is the peoples of the states who are sovereign; no governmet is sovereign in the American system.) These communities, according to the compact theory, have not forfeited their sovereignty by delegating a portion of their sovereign powers to a central government that is to act as their agent…That it is the peoples of the states (often referred to in shorthand merely as ‘the states’), rather than the American people in the aggregate, who are sovereign is evident from history…The British acknowledged the independence of those states by naming them individually. Article II of the Articles of Confederation declared, “Each state retains its sovereignty, freedom and independence”; the states must have had that sovereignty to begin with in order to retain it in 1781,when the Articles took effect. And when the Constitution was to be ratified, it was ratified by each state separately, not in a single national vote. This simple historical overview establishes a very strong prima facie case that the states remained sovereign and were never collapsed into a single whole…What that meant for Jefferson and many of the thinkers who followed in his footsteps was that in the last resort the states, the constituent parts (and creators) of the Union, had to have the power of nullification, the refusal to allow the enforcement of unconstitutional federal laws within their borders.” The states do, indeed, need some kind of protection by which they can prevent the abuse of federal power from destroying the very system they themselves created.

Bassani noted that “…the Kentucky Resolutions of 1798 which vindicate the compact theory—and which countless historians have tried to run away from—contain ‘the whole of Jefferson’s theory of the federal union.” He stated also that Jefferson’s draft contained the term “nullification” which was later taken out by chicken-hearted legislators, but in Jefferson’s thinking it was an integral part of the whole.

So all of the statesmen of that period did not buy into the “perpetual Union” theory. The “perpetual Union” folks are free to believe in that. It’s probably what their history professors taught them, but that doesn’t necessarily mean that it’s the gospel.

Part 2–More About Secession the “History” Books Haven’t Told Us

by Al Benson Jr.

It has been accurately asserted by author Gene H. Kizer Jr. that: “The arguments for the right of secession are unequivocal. There is the constitutional right based on the Compact Theory, and the revolutionary right based on the idea that a free people have a right to change their government anytime they see fit. The Compact Theory views the Constitution as a legal agreement between the states–a compact–and if any one state violates the compact, then the entire agreement becomes null and void. Northern states unquestionably violated the Constitution on a number of grounds including Personal Liberty Laws on their books, as well as by deliberately harboring fugitives from justice by protecting the sons of John Brown who were wanted by Virginia for murder at Harpers Ferry. Northern states also made a mockery of the Constitution’s Preamble which states clearly that the Constitution was established to ‘insure domestic tranquility’ and ‘promote the general Welfare.’ Certain prominent Northern leaders with the acquiescence of states like Massachusetts were utterly at war with the South and doing everything they could to destroy the domestic tranquility of the Southern states by encouraging slaves to murder white people, poison wells, destroy property and commit other acts of rapine. John Brown himself had been encouraged and financed by the North.”

I have, in the past, written about a group called The Secret Six, which financed Brown’s terrorist activities in both Kansas and Virginia. Of this group all, save one, was from New England and that one was from New York. An excellent book to read regarding this dismal period in our history is Otto Scott’s The Secret Six–The Fool as Martyr which is a biography of John Brown, and therefore deals with those that financed him in some detail. Another good work in this area worth reading, if you can find it is The Road to Harpers Ferry by J. C. Furnas. A couple years ago in my little newsletter The Copperhead Chronicle I did a series of biographical sketches on the Secret Six. Quite an interesting little group. One of them, Thomas Wentworth Higginson, a Unitarian minister made the statement “I am always ready to invest money in treason…” I mention all this to demonstrate that the North had indeed broken the Constitutional Compact.

Walter Williams, a distinguished professor of economics at George Mason University has written on the secession question on a number of occasions. In his understanding secession is indeed legal. He noted at one point that before the War Between the States a constitutional amendment was proposed by some Northern congressman that would prohibit secession. He then points out that there would have been no point in offering such an amendment if secession had already been unconstitutional. You do have to admit that he has a point.

A few years ago the late Joe Sobran, (whom I assume that most people who read have heard of), wrote an article that appeared on http://www.theimaginativeconservative.org in which he noted that: “Our ultimate defense against the federal government is the right of secession. Yes, most people assume that the Civil War settled that. But superior force proves nothing. If there was a right of secession before that war, it should be just as valid now. It wasn’t negated become Northern munitions factories were more efficient than Southern ones.” And Sobran further observed, and I have to agree with him, that: “The original 13 states formed a ‘Confederation’ under which each state retained its ‘sovereignty, freedom and independence’.” The Constitution didn’t change this; each sovereign state was free to reject the Constitution. The new powers of the federal government were ‘granted’ and ‘delegated’ by the states, which implies that the states were prior and superior to the federal government. Even in The Federalist, the brilliant propaganda papers for ratification of the Constitution…the United States are constantly referred to as ‘the Confederacy’ and a ‘confederate republic,’ as opposed to a single ‘consolidated’ or monolithic state. Members of ‘a confederacy’ are by definition free to withdraw from it.”

Sobran noted that while Hamilton and Madison sincerely hoped secession would never happen, they didn’t deny that it was a possibility, and even if Madison didn’t like or agree with it, that doesn’t make it illegal.

Thomas Jefferson wrote in 1816: “If any state in the Union will declare that it prefers separation…to continuance in union…I have no hesitation in saying, ‘let us separate’.” Donald W. Livingston, a professor of philosophy at Emory University, and president of the Abbeville Institute, wrote in an article published in Chronicles magazine in October, 2010, that: “A state cannot retain sovereignty unless it has it, and in joining the Union no state renounced sovereignty. What motivates the nationalist theory is not an honest look at the historical founding of America, but political ambition legitimated by the philosophical theory of the modern unitary state. This ambition appears forcefully in Hamilton, who argued at the Philadelphia Convention for a president for life, a senate with members for life, appointed by the president, and state governors appointed by the president–in other words, monarchy by another name.” You have to wonder if any of those “you can’t get out of the Union no matter what” folks have something of this sort in mind. Those that seek to deny people their rights usually do have an agenda.