Tag Archives: secession

Bill Lockwood: Answering Daniel Webster on Nullification and Secession 5 (1)

by Bill Lockwood

Robert Hayne of South Carolina was the first man to put forth conspicuously the doctrine of Nullification, by which is meant the right of a State to arrest the operation of a law of Congress, provided the State in convention should decide that the law was unconstitutional. The year was 1830. Hayne delivered his speech in the U.S. Senate on January 21.

At issue was the Tariff of 1828, popularly known in the South as “The Tariff of Abominations.” South Carolinians hated it, and not without cause. It strongly favored the northern states while causing the southern states to carry the lion’s share of taxes on imported goods. At the same time, the tariff  forced the South to go into debt to New England.  It was largely believed that “North had declared economic war on the South.”

Daniel Webster was Senator from the state of Massachusetts. He was disturbed that Hayne, in his objections to the tariff, had also asserted a states’ right to secede. Northern states looked to Webster to give reply to Hayne, which he did the following day, in what has come to be known as The Second Reply to Robert Hayne of South Carolina.

Webster is championed as providing an unanswerable argument to Nullification. It is widely believed, even today, that Webster “dismantled” the South Carolinian’s argument, “point by point.” Webster’s reply may have been over 150 years ago, but his rebuttal needs to be examined.

Before reviewing Webster, it is to be noted that the Senator from Massachusetts had earlier taken the position that what the Constitution did not specifically forbid, Congress may do. His argumentation was that the Constitution was a “sketch, an outline, not a detailed rendering.” “The true view of the subject is that if it be a fit instrument to an authorized purpose, it may be used, not being specifically prohibited.” Consider now Webster’s disputation against Robert Hayne on the floor of Congress.

Natural Rights or Constitutional Rights?

Webster’s first response was to confess that a people had a natural right to revolution, to be openly disobedient and even to throw-off the yoke of a government, such as had occurred in our founding period. “Webster granted that the people were not bound to obey unconstitutional laws, and that they might disobey them without overturning the government.”

However, Webster distinguished between a natural right and a constitutional right. A natural right he granted, but believed the doctrine of Nullification belonged in the category of a constitutional right, and since the Constitution itself did not grant the right of nullification, South Carolina could not rightly directly interfere with a federal law.

Webster’s objections are shallow and his distinction is arbitrary.

First, Webster had earlier argued that what the Constitution did not specifically forbid, Congress may do. This is now at cross-purposes to his stand against nullification. Hayne had pressed for a “constitutional right of resistance” by the states. But Webster now insists that Nullification is illegal since it is not specifically mentioned in the Constitution as a legal course of action. Gone therefore is his principled stand that unless a Congressional action was specifically forbidden the states or the people may do.

Second, to argue that the “people are not bound to obey unconstitutional laws” assumes that the people have a natural right to interpret the Constitution for themselves outside the “official interpretation” of the Federal Government. This is the true nature of the case, as “the people” agreed to the Constitution, ratifying it in the states, several years prior to the establishment of the Supreme Court, the supposed final arbiter of legitimate Constitutional interpretation.

As stated earlier by President John Adams: “You have rights antecedent to all earthly governments; rights that cannot be repealed or restrained by human laws; rights derived from the Great Legislator of the Universe.”

Third, most importantly, a states’ right to Nullify, or Disobey a law that it believed was unconstitutional need not be grounded in the text of the Constitution itself. There is a natural right before God to manage our own government. This was the ground of the Declaration of Independence. Nullification is what the Founders practiced regarding England.

It is arbitrary to place a states’ right of self-government in the category “constitutional or not” as opposed to natural rights before God—as if all of our rights must be listed in the plain text of the Constitution. To this the founders would never agree. In fact, they specifically forbade that concept in the 9th Amendment. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Simply, the instrument of the Constitution merely granted certain specified rights owned by the people to the federal government. Webster’s position against Hayne, at least in this case, assumes that the role is reversed, that the people have whatsoever the government decides.

The Constitution a Revocable Contract?

Related to the above is the basic issue is whether or not the Constitution is a contract to which both parties, states and the federal government, agree. And at the heart of this is the issue of just who is the interpreter of the Constitution?

When, during the War of 1812, New England was convinced that the federal government was not serving their interest, Webster and others characterized “the Constitution as a revocable compact” and “furnished the philosophical basis for a New England declaration of independence.”

Now, however, in 1830, when New England profited heavily from the Tariff of 1828, to the South’s detriment, Webster reversed himself. When Robert Hayne argued that the “true defenders” of the Union were “those who would confine the federal government strictly within the limits prescribed by the Constitution, who would preserve to the states and the people all powers not expressly delegated …”, Webster disagreed. If Webster is correct here, the field is wide open. America is exactly where it is today by the logic of Webster’s reasoning.

Who Decides?

“The great question is,” per Webster, “whose prerogative is it to decide on the constitutionality or unconstitutionality of the laws?” This is the crux of the entire discussion. Webster answers that it lay with the federal government alone, in particular the federal judiciary. In response, consider:

First, Webster is in the field of philosophy, since the Constitution itself, by its language alone, does not specifically address the “interpreting” the Constitution, at least as mandating law for the entire country. It is noteworthy also that neither Jefferson nor Madison agreed with Webster at this point. The ‘Principles of ‘98’, which they authored, pointedly took issue with his assertion. And it is more than highly doubtful that any of the Founding generation would agree that the federal judiciary alone could decide laws for the entire nation.

Second, the federal constitution was founded as a contract, a compact between the States and the federal government. To ignore this is to ignore the entire fabric of the Constitution. When the Pilgrims escaped to American shores they were escaping a top-down control of the Roman Church in the Old World. Though ignored by modern America, this is the taproot of our Constitution.

Our Founders believed that their associations in religion were voluntary, which lay at the base of their political associations. This type of preaching gave rise to the words of the Mayflower Compact. “We solemnly and mutually, in the presence of God and one another, covenant and combine ourselves together into a civil body politic …” The Fundamental Orders of Connecticut of 1639 reads exactly the same. These were antecedents to our Federal Constitution.

These concepts gave rise to the fundamental law of our nation, The Declaration of Independence, which asserts that “the consent of the governed” is for rule to be legitimate. This principle Webster, as well as myriads of moderns, freely cast aside by the assertion that the federal government alone may decide what is constitutional. Not much consenting in that.

As noted above, Webster himself agreed with the principle of Nullification in matters of “palpable” departures and that it is true that “the people are not bound to obey unconstitutional laws.” But if this be the case then the ability to “interpret” the Constitution does not lie within the province of the federal judiciary alone. Webster did not see his inconsistency.

Third, most ominously, if Webster is correct, then once again the field is boundless for Congress to make whatever laws it desires. As long as an activist Supreme Court agrees, these legislations become law and there is absolutely no recourse, per Webster’s argument, for the citizens that must chafe beneath the burden of these laws.

No matter how wicked or onerous, whether it enact socialism or communism, infanticide by law or homosexual unions, a one-child policy as in China, the socialist redistribution of wealth, an open border or nationalized health care carried on the backs of the middle-class—citizens are legally bound to bear that yoke.

This is where the logic of Webster leads.

Confederation?

Webster finished by asserting that if a State has the right to nullify federal laws, then the entire Union is a “rope of sand” and we are “thrown back again … upon the old Confederation.” The people had, Webster reminded, “rejected the Confederation by ratifying the Constitution, whose central point was to prevent the states from vetoing measures enacted for the common national good.”

He added that people ought to repudiate Hayne’s principle of “Liberty first and Union afterwards.”

Let us here agree with Webster on confederation. If states have the right to nullify laws, perhaps we are indeed “thrown back” onto the ‘old confederation’ which the people “rejected by ratifying the Constitution.”

Must Webster’s principle of Union first, and Liberty afterward always be maintained? Does this ring true to the Founders’ vision? As Webster announced it, it must. But if so, we “are thrown back” onto eventual subservience and despotism. How far must we uphold “Union” to the detriment of our “Liberty?”

James Madison asserted, almost as if he was prophesying of modern America, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, …may justly be pronounced the very definition of tyranny.

We have certainly crossed to the other side of the road in America where tyranny has become commonplace. Webster would certainly have agreed, at this point, that his principle of Union first, and Liberty afterward, is no longer valid. But if not valid now, neither was it then. We should not be left to the Webster’s of the world to tell us just when we should cherish our liberties more than the Union.

Bill Lockwood: Is Secession Constitutional? 4 (1)

by Bill Lockwood

An Open Letter to Citizens of Texas: An Answer to Rep. James Frank (District 69)

Representative James Frank (TX-District 69) recently announced that he will not support the House Bill 1359, which calls for a secession referendum in the State of Texas. His reasons are three; (1) His Love for this Country, (2) The US and Texas Constitutions—there is no specific “provision” in either of these for secession; (3) The Profound Consequences for Texas.

What follows is not an open call to secede, but a challenge to consider the principles upon which secession is grounded. To dismiss the possibility of secession as “illegal and ill-advised,” as Frank does in his letter, is what I am challenging. At the same time, I will overlook his dismissive remarks that those who wish to “leave the Republic” are some “self-described patriots.” Patriotism is not the issue; it is liberty.

While acknowledging the “profound consequences” (Frank’s #3), such as pensions, social security, status of Texans serving in the military, etc. that a separation would bring, it should be remembered that the consequences for remaining attached to the United States might be profound as well—loss of free speech; indoctrination in halls of learning; excessive taxation; a wildly out-of-control unconstitutional welfare system; a ministry of Truth (propaganda) that is already being organized at the Federal level; the crushing of Texas jobs, cancellation of 2nd Amendment; the loss of free and fair elections, and more. The only issue here is if we will allow people to weigh the profound consequences for themselves.

Pertaining to love of country (Frank’s #1), it must be stated that all of us love this country. The issue is not whether we love this country, but whether we love the gifts of God such as life and liberty more than the United States of America. The main issue I wish to address is his second objection, pertaining to the Constitution.

No Specific Provision for Secession?

Rep. Frank fails to understand the very essence, the nature of the U.S. Constitution. Alexander Hamilton, in Federalist #78, explains the entire principle.

There is no position which depends upon clearer principles, than that every act of a delegated authority [federal government] contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution can be valid. To deny this, would be to affirm that the deputy [federal government] is greater than his principal [the people which created the deputy]; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men, acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

Hamilton was arguing for the interposition of the Courts to protect people, but the principle is the same. That principle is that the people delegated only so much authority to the federal government; that the federal government is merely the deputy created by the principal, the people; that the master is the people and the federal government is the servant. The Federal government is the creation of the people, and it is “we the people” that give to the government its right to exist.

Why was it thus created? Not an instrument to grant rights to people, but a creation of the people to protect what God gave us; namely, life, liberty and property. Authority flows upward from the people, which is why the Constitution begins, “We the People.” Rights to life, liberty, property, and self-government preceded the creation of government.

This is the basic fundamental premise upon which all of our statecraft was built and explains why the Founders would sign a document that reads, “That whenever any Form of Government becomes destructive to these ends, it is the Right of the People to alter or to abolish it …” They did not look for permission for secession from England in English statutes. This same concept is built right into our own Constitution, for the 10th Amendments provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The right of self-government is one of these.

The argument for secession therefore has never been that one can find its justification in a specific statute which provides for it, but is man’s appeal to Almighty God for the right of self-government, an argument based upon natural law. Ignoring this basic fact throws our entire system into wild confusion, a confusion represented by Frank’s reasoning of the “illegality” of secession on the basis that “there is no provision” in the Constitution that grants this right. The Constitution never did grant us rights—those come from God.

Rep. Frank turns the entire nature of our Constitution on its head. Such reversal of authority is a common error, but a fatal one. American governing is such that it is the people who grant to the Federal Government its rights, not the other way around. To accept the alternative revokes Hamilton’s main point and asserts that the “deputy” is indeed greater that the “principal,” that the “servant” is greater than “the master,” for the servant does not give us a provision to withdraw!

When the Founding Fathers gathered in Philadelphia 1787 to draw up a new constitution, they were not creating a national system to “grant rights” — they already owned these rights from God. What was done in Philadelphia was to create a central government by granting to it certain specified powers that had previously belonged to their several states. The right of secession therefore, is based upon the presupposition of an inalienable right of free people to consent to the form of government under which we must live.

William Rawle, in one of the first commentaries on the Constitution, written in 1825 and used for many years at West Point Military Academy, stated, “The secession of a free state from the Union depends upon the will of the people of such state. The people alone, as we have already seen, hold the power to alter their constitution.” Again, “The United States were formed into a federal body, with an express reservation to each state of its freedom, sovereignty and independence.”

If Rep. Frank is correct, that secession is “illegal” and “ill-advised” then never is there an escape from a government that works to usurp the will of the people, for that is a dictum that admits of no recourse.  This cuts the legs out from beneath the Founders themselves. He takes the position that he does not favor a proposed referendum vote (HB 1359), which is only to allow the people to voice their opinions in the ballot box as to whether they would favor secession. Rather than withholding a vehicle whereby the people can speak, the earnest invitation is to give the people voice. Vote HB 1359 and liberate the will of the people.