I’ve had many conversations with folks about what is the role or purpose of government. My answer is, to better secure our unalienable rights. If we pause for a moment and consider the question: What is Government? We know why governments are instituted but, really, have you stopped to contemplate the question..
What is Government?
If we agree that people were on this earth before government then we can readily agree that people without government are truly in a state of Nature. In a Hobbesian and Lockean sense. Every person has certain unalienable rights endowed upon them by their Creator. We often hear of life, liberty, and property. But there are other unalienable rights such as the right to self-defense, the right to barter/trade, the right to contract, the right to association, etc.
It is the last one I listed that I want to discuss — The Right of Association. If people are free to associate with whomever they please they may choose many associations. Some may be related for religious reasons, others may be for work related reasons. In a modern sense we are free to associate with people in many ways like a chess club, a fantasy football league, a particular religious denomination, etc. We have many associations in life. And, all associations directly flow from our unalienable right of association.
There is one particular, one very specific type of association that deserves further discussion. That is when people freely choose to form a political society. In context of our history, the people chose to form a political society called a State. The people of Virginia formed the Commonwealth of Virginia. The people of Massachusetts formed that State. The people of Delaware formed that State. The people in those States chose to form a political society called a State government.
The free and voluntary acts by the people of one State did not and cannot obligate the people of other States. For instance, the people of Virginia could not obligate the people of Maryland to join Virginia or to force the people of Maryland to abide by what Virginians chose to do. The people of each State acted independent of every other State.
We find this in our founding documents. The Declaration of Independence says in the last paragraph, “and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.”
So, back the question, what is government? Government is simply the free and voluntary act of people choosing to associate themselves with other people to form a political society. Government is simply a political society. Its formation is a direct result of our unalienable right to associate. This is precisely what the Declaration means when it says “Governments are instituted among Men, deriving their just powers from the consent of the governed”. To rephrase, our political societies are created by people exercising their unalienable right of association. Thus the political society’s just powers come from the consent of the people.
In our history there have been three secessions. The first secession happened when the colonies declared independence from Great Britain. The second secession happened when the ninth State ratified the Constitution. At the time the 9th State ratified the other four States remained under the Articles of Confederation and Perpetual Union. The third secession happened when the Southern States withdrew from the Union.
The historical record has dozens of documents that prove demonstrably that the Articles of Confederation and the Constitution where both referred to as a federal constitution. Moreover, documents from the ratification of the Articles of Confederation, from the States authorizing representatives to the federal convention in Philadelphia, from State ratifying conventions, and the State ratification documents provide overwhelming evidence that both Articles of Union were a compact amongst the States. The contemporaneous understanding during the founding generation was the federal constitutions were social compacts. Future assertions made by people like John Marshall, Joseph Story, Daniel Webster, Abraham Lincoln, and others in the 20th century that the government is national and was a creature of the whole of the people are simply unfounded and without demonstrable evidence to support their assertions.
As both federal constitutions were made in compact amongst the States which means that each State – political society – acceded to the compact. If we review the definitions of certain critical words as they were defined in the 1780s it provides insight into the understanding at that time. The following definitions can be found in Samuel Johnson’s 1785 dictionary:
Accede: to be added to, to come to, generally used in political accounts; as another power has acceded to the treaty; that is, has become a party.
Society: 1) Union of many in general interest. 2) Partnership; union on equal terms.
Compact: 1) A contract; an accord; an agreement; a mutual and settled appointment between two or more, to do or to forbear something. 2) to league with 3) to join together; to bring into a system.
Confederation: League; compact of mutual support; alliance.
Constitution: 1) Established form of government; system of laws and customs. 2) Particular law; established usage; establishment; institution.
Federal: relating to a league or contract.
With these definitions in mind as well as the documented records of the time it doesn’t require mental gymnastics or semantic manipulation to understand each State was a political society formed by the citizens of said State, and each State was free, independent, and sovereign. The acts of the States – the political societies – was to create a federal constitution which each State assessed, evaluated, and debated its merits before deciding whether to accede – to join – the Union. The federal constitutions were compacts amongst the States. The Sates reached agreement on which powers would be delegated to the federal government and which powers would be reserved by the States or the people. That agreement was the federal constitution, which was acceded to through a ratification process. In both cases the creators of the federal constitution were the States – the political societies acting independently and in their own capacity as a free State without obligating any other State – political societies – in any way shape or form. The creation of both Articles of Union was the federal government.
If the States accede to join the Union the states therefore can Secede and leave the Union. The right to Secede from the Union was exercised when States seceded from the Articles of Confederation and Perpetual Union. The right was certainly not denied at that time as each State, one by one, seceded from the Articles of Confederation. If the Union were perpetual as some posit, then the States could not have seceded in 1787 and 1788. In fact, once secession was established, in act rather than in principle, the right to secede was valid and established or the new Constitution has no effect.
The contrary view is the new Constitution was ratified by the people. In this context I mean the people of all thirteen states acting as one aggregate, cohesive body. Two of the better known proponents of the national view of ratification are Supreme Court Justice Joseph Story and Congressman Daniel Webster. Some of you may have heard of or even read Story’s Commentaries on the Constitution. Both Story and Webster posit that the people as a whole ratified the constitution and as a result created a national government. This was Lincoln’s view as well. And, a view that has gained traction in the 20th century by big government theorists like Teddy Roosevelt, Woodrow Wilson, Franklin Roosevelt and many more.
However, both Story and Webster concede that if the constitution was indeed a compact amongst the States and not ratified by the whole of the people then States absolutely had a right to secede. Justice Story said, “The obvious deductions which may be, and, indeed, have been drawn from considering the Constitution a compact between States, are that it operates as a mere treaty or convention between them, and has an obligatory force no longer than suits its pleasure or its consent continues.” Webster concedes the same point as Story does.
Let’s assume for a moment the Constitution was indeed ratified by the whole of the people. If true, then the system and form of government established prohibited the people from ever amending the Constitution in the future, as there are no provisions for the people to directly amend the Constitution. Only the States can amend the Constitution. Why would the whole of the people create a new form of government yet prohibit themselves from every changing, modifying, or amending the very creature they created? Moreover, consider, can the Congress pass a law today that obligates a Congress twenty years in the future? For instance, imagine if a law were passed that said, all Congresses are, by law, obligated to pass in the affirmative any debt ceiling increases requested by the President at that time. Or, that a law is passed that would never allow for the repeal of some current law. The current Congress cannot obligate a future Congress. So, can the whole of the people obligate future generations to the Constitution? No, they cannot. If the whole of the people ratified it, then the Constitution would require ratification by future generations. How could someone 200, 500, 2000 years ago obligate me to a government or set of rules of which I was not a party too. It’s not possible in any legal or moral sense.
One may ask, how can the people of the state – a political society – do the same thing under a compact? The answer is they cannot. The people of each State can independently determine for themselves whether the State remains in the Union or whether the State secedes from the Union. Any suggestions otherwise are pure folly.
Under the compact when one party – the federal government – becomes abusive of its powers those that created the federal government may either rescind or amend the powers delegated, or if the aggrieved party feels the injustice is so severe as to defeat the purpose, reason, and benefits of remaining in the Union they can leave the Union. The right and duty of the people of each political society — each State — to alter or abolish government is up to them. Of course, alteration has a proscribed process and requires the agreement from other states to reach the threshold for an amendment to be ratified. But secession is a form of abolishing government by virtue of simply seceding from the Union, from the compact. The question of secession is particular to each State. One State cannot obligate another State to accede to or secede from the Union.
Consequently, secession is merely a political question. It is not a legal question whatsoever. It is because political societies are formed as an extension of our unalienable rights and that self-governance and self-determination as well as the consent of the governed are inherent in any legitimate form of government. If we understand the answer to the question what is government we can proceed to put to rest questions of secession as we’ve resolved them in unambiguous and unequivocal terms.