Monthly Archives: May 2013

Do Words Have Meaning

Words have meaning.  Words have effect.  In a legal environment words affixed to documents such as contracts adhere to these maxims.  If words were included that either had no effect or the meaning of the words could change after the contact was signed, who in their right mind would agree to such conditions. Imagine if the terms of your mortgage contract could be modified, without your agreement or knowledge, after you signed the contract.  If your contract stipulated the principle loan amount, the interest rate, and the repayment schedule and you agreed to those terms did you agree to a change in those terms as well?  If your repayment term was 30 years and after signing the contract the lender says you now have to repay the loan in 10 years, or instead of a 4% interest rate your interest rate is now 12% would you have agreed to those conditions?

In agreements between parties not only do words have meaning those words have a fixed meaning.  Additionally, words in a contract where parties are obligated to act in a certain manner, abide by certain conditions, the words must have effect.  Words on paper that have no effect on the purpose of the document are merely surplus.

The Constitution is a written agreement amongst the parties that defines the structure of the federal government and defines the powers delegated by the parties to the federal government.   The drafters of the Constitution were those men gathered at the Philadelphia convention in 1787.  What they produced was merely a proposal for a system of government.  An unsigned contract has no effect on the parties until those agreeing to the terms sign.  Likewise, the Constitution prepared by the drafters had no effect until the parties ratified it.

The parties to the written agreement are the people of each free and independent state; acting voluntarily and without coercion from any outside influence.  The people of the State of Virginia could not influence or coerce the people of New Jersey to ratify the Constitution (i.e. sign the contract) and vice versa.  Therefore, the people at each of the State (independent from every other state) sent their delegates to State ratifying conventions to either ratify or reject the Constitution.

When it comes to understanding the written agreement amongst the parties to the Constitution we must always look to the state ratifying conventions first when trying to interpret and apply the Constitution.  This is the basis for originalism when it comes to constitutional construction.  Relying on another person completely disconnected from the signing of the agreement is akin to asking your third cousin their understanding of the terms of the mortgage contract you signed.

Words affixed to a constitution must have a fixed meaning, otherwise the understanding of the terms, conditions, framework, and powers delegated cannot be properly ascertained.  For instance, what one word best describes the following; happiness, success, and prosperity?   At the time the constitution was ratified the 1785 Samuel Johnson dictionary defines the word welfare as happiness, success, and prosperity.  The general welfare was a term used in both the Articles of Confederation and the Constitution and was a restriction upon powers delegated to the general government under both Constitutions.  If the definition of the word welfare changed to include government benefits provided to some member of society the “general welfare clause” meaning also changes.  Therefore, the meaning of the Constitution and the powers delegated also change.

It is unreasonable to expect those ratifying the Constitution to expose themselves to such clever manipulations of language and meaning.  To presume the words and meaning could change 50, 100, 200 years in the future without an amendment is to admit the words are without known meaning or effect.  Which means the Constitution itself is without meaning or effect.  Today, through clever manipulations the Constitution has been reduced to whatever modern day, politically connected lawyers clothed in black robes decide it means.

Consequently, this leads to further destruction of original understanding.  Once the meaning of words arbitrarily evolve or change over time, according to whomever happens to be wearing the black robes at the time,  it renders large chunks of the Constitution meaningless.  There are words that have no effect as a result.

For instance, the meaning of welfare changing from its original understanding at the time of ratification to today’s plenary grant of power renders the entirety of the powers delegated in Article I Section VIII meaningless and of no effect.  If the meaning of the introduction to Section VIII is changed as described the 18 or so powers delegated in the section are redundant as they are encompassed by the introductory words.

Likewise, at the time of ratification the word commerce had a very well understood meaning that was supported by hundreds of years of English law and the Merchant Law (commerce) was a specific branch of English law.  The term commerce was never understood at the time of ratification to mean all economic activity.  That definition was posited by academics in the 1930s and shortly thereafter the Supreme Court used this new found meaning of the word commerce in their judicial decisions.  Naturally, the new meaning completely changed the scope of the commerce powers delegated under the Constitution.

A maxim of construction declares when two possible interpretations exist if one were to give the words effect and the other to render the words meaningless and inapplicable then the former construction applies.  If words have effect then the interpretation must ensure those words are actually effectual.  Any interpretation rendering one or more sections or paragraphs ineffectual is wrong.

If the living, breathing approach to the Constitution were applied to all contracts and other legal documents and proceedings we would be operating under a pseudo-common law system.  Though laws are written the laws are put into effect by the interpretation of the judiciary rather than the intent of the law passed by the legislature.  Under the Constitution laws are made by the legislative branch not by the judicial branch.  Apply this theory to testimony provided in person or through an affidavit.  If your sworn testimony has meaning and effect it must be the meaning and effect you give to it.  But, if your testimony can be treated as “living and breathing” and lawyers can decide the meaning of your words on your behalf then your testimony is, for all intents and purposes, meaningless and left to the preferences and penumbras of lawyers.

To be found guilty of committing a crime a person must be convicted unanimously by twelve people.  Even the most trivial crimes require a trial by jury and a unanimous decision.  The Constitution is the highest law of the land and it is often times left in the hands of one person.  A Supreme Court ruling split 5-4 means one person has ruled, on behalf of 310 million people, what the Constitution means.  Why do statutory laws require unanimous decisions while the Constitution – the highest law in the land – is decided by one person?

Moreover, the Constitution itself is superior to the federal government.  All three branches are subordinate to the Constitution.  The judicial branch ruling on all things constitutional eliminates its subordinate function in the framework of the Constitution and elevates the judiciary above the Constitution itself.  It is nonsensical considering the framework in which the Constitution was instituted.

The purpose of a written constitution is to have written law and the Constitution itself is the supreme law of the land.  For any law to have effect the words must have a fixed meaning and the words must have effect.  Whenever, those elected as our agents, fiduciaries, and public trustees do not abide by the Constitution – law superior to all other man made law – they create lawlessness.  And, lawlessness begets lawlessness.  Naturally, why should the people abide by any statutory laws – laws inferior to the Constitution – if those at all levels of government do not abide by the superior laws the people established to constrain elected officials?

The Constitution has been perverted to the point that everything is reduced to a legal issue decided by one black robed lawyer appointed to protect the prevailing orthodoxy according to their own prescriptive policy preferences and penumbras which ignores the maxim that words have a fixed meaning and words have effect.

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Eating Out Our Substance

Outrage over the IRS targeting of certain political groups has created a groundswell of demands for investigations, special prosecutors, resignations, and impeachment.  Likewise, the calls for reforming the IRS or changing the tax code to a flat tax or a fair tax are promulgated by those seeking change.  Unfortunately, most pundits, politicians, and even liberty minded groups are missing the big picture.

The question of utmost importance is the relationship between the citizen and the government as well as society in general.  Unquestionably, it is self-evident that all our political societies – state and federal — are formed from the consent of the governed.  In a constitutional republic the majority can never vote away the rights of the minority.  In our political societies the smallest minority is the individual.

Furthermore, the basis of our political societies rest upon the bedrock principle that every person has certain unalienable rights; amongst them are life, liberty, and property.  Most people comprehend the basic tenet that they have an unalienable right to their life.  Implicitly, each person then must sustain their own life.  The means of sustaining life is to labor; to produce.  Therefore, we must acknowledge each person has a right to property in order to sustain their life.  This is the basis for property rights.

Without an absolute right to property a person has absolutely no means to sustain his primal objective to sustain his life.  The absence of life renders property meaningless just as the absence of property rights renders life meaningless.

We know that man pre-dated government just as we know the voluntary, non-coerced acts of the people exercising their right of self-determination created all our political societies.  Implicitly, both the right to life and the right to the means and product to sustain life pre-dated political societies.

This begs the question; does the State have a pre-emptive right to your property?  If yes, then the State has a claim against your labor and your property ahead of your own claim.  In other words, the State has qualified or limited your right to life because the State has claimed some, or all, of your property.

A natural law, Lockean mind acknowledges certain unalienable rights, that man pre-dates government, and, when forming political societies people delegate a minimal set of rights in exchange for better securing the rights they retain.  Contrast that with the collectivist mindset.  The collectivist mind says the greater good must be served first.  The State comes before the people.  Jean-Jacques Rousseau posits that when people leave a state of nature and form political societies they forfeit or alienate all their rights to the State and the State decides what people may or may not have.

In this collectivist mind, the State is the sole and final arbiter of life and property.  The State interposes itself and claims first right to your property.  You labor to produce and the State determines what you can keep to sustain your life.

This is the foundation for modern day taxation; the State supersedes individual rights to life and liberty.

Hypothetically, the State imposes a claim – a tax – on 100% of your property.  You labor and the State confiscates everything you produce.   The State then decides where you live, in what conditions, what property you can and cannot have, what you can eat, etc.  The States is omnipotent and omnipresence.  You are nothing less than a slave laboring to produce for the State and the State holds absolute power over your life and property.

Now, if the State imposes a 50% tax on your property.  At best you are half free and half slave.

Regardless of the tax percentage the State’s claim to your property supersedes your rightful claim to property you labored to produce.  This is exacerbated because the size and scope of government has grown enormously where the ability to sustain the State requires the State to confiscate more and more property.  Over time people believe it is the State itself that is responsible for society and all economic activity therefore people clamor how taxation is needed or the economy or society would fail.  That is simply hogwash.  Society is a blessing but government isn’t the catalyst that creates these interactions amongst people.  For more on this read this article Society is a Blessing; So Let Us Try Liberty.

The most common responses are to institute a fair tax or a flat tax.  I am opposed to both and will explain briefly.  The fair tax is a consumption tax.  In constitutional terms it is really an indirect tax as it is collected at the point of purchase and then remitted to the government.  The person is not directly taxed.  Indirect taxes hid the impact of taxes on the citizen.  Moreover, a consumption tax on all final goods and services is a tax on your life.  You are forced to pay the tax even to sustain your life.  You cannot go without food and water and other basic necessities.  Even today, you are forced to pay a state and federal taxes on gasoline which is needed for you to labor and produce property that the State then lays another claim to via an income tax.  Lastly, a consumption tax would be more burdensome for people that earn less.  Since the median income is roughly $50,000 the burden will fall mostly on those that can least afford it.  Most fair tax plans actually have built in minimums, rebates, or pre-bates for lower income earners, etc.  In the end the fair tax isn’t a flat tax.

A flat tax, by itself, changes nothing.  A consolidation from six tax brackets to one tax bracket doesn’t change the complexity of the tax code.  The tax code itself is a problem because it used by elected officials to raise campaign funds in exchange for special preferences and to bludgeon political opponents.  The tax code supports the States assertion that they have a claim on your property before you.

At this point you may be asking, what is the solution?  My solution is to abolish the IRS in its entirety and repeal the 16th amendment.  The United States functioned without an income tax for 120 years.  The biggest economic boom in the Union occurred from the 1860s to 1910.  There was no income tax (leaving aside Lincoln’s unconstitutional income tax to fund the Civil War).  The currency grew stronger.  People lived and survived without the Internal Revenue Service, Environmental Protection Agency, Department of Education, Department of Energy, Bureau of Alcohol, Tobacco, and Firearms, Department of Interior, Homeland Security, Department of Labor, Department of Health and Human Services, Department of Housing and Urban Development, Department of Transportation, the Federal Bureau of Investigation, the Central Intelligence Agency, Social Security, Medicare, Federal Communications Commission, Transportation Security Administration, etc.  Not to mention the dozens to hundreds of foundations, commissions, and quasi-government agencies/entities.

Really, how could mankind have survived for so long without all these government agencies?  Many thousands of years and man has survived without a Department of Education.  Suddenly, the Department of Education is so vitally important that we could not survive without the government involved in education.  To believe this is to be a subject, a serf, a tool for the federal supremacists.

The government leviathan is littered with bureaucrats that are unelected and unaccountable to the people.  Congress has abrogated its powers to executive branch agencies that pass rules and regulations that are treated as law.  Bureaucrats, drunk with power, infest offices and cubicles throughout the land.  These bureaucrats were here before the current administration and will be here after the current administration.  Just because we’ve seen the faces to three bureaucrats on Capitol Hill this week, know there are millions more of them out there.  Recall, one of the grievances stated in the Declaration of Independence was “He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.”

Without a complete elimination of the IRS (and other agencies) and the repeal of the 16th amendment, government continues to claim priority over your property which, ultimately, is a claim over your life.  Government will continue to eat out our substance.  To restore the relationship between the citizen and government and to return society to a more natural state of affairs these changes are necessary.

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The Right of Self-Determination

The proper question in any political system is who are the sovereigns?  Is the President the Sovereign?  Is Congress the Sovereign?  Is a King the sovereign?  Are the people the Sovereigns?  Why is there so much confusion over the question of whether the Union is a democracy or a republic?  These questions purposely ignore military dictatorships and totalitarian regimes legitimized by state sponsored violence or military power as sovereigns is a foreign concept under those political systems.

The answers to those questions seem to puzzle many commentators.  Though the Union is a constitutional republic, for arguments sake, let us assume the Union was a democracy.  It doesn’t alter the fundamental truth regarding sovereignty.  The people are the sovereigns and the people are the source of all power in our political system.  However, the system is not majority rule, nor it is a system of absolute power where might makes right.  Our entire political system rests on a single fundamental principle — the consent of the governed; the right to self-governance and self-determination.

Self-determination means the right of the people to decide upon their own political status or form of government without outside influence.  Consent of the governed is a phrase based upon the principle of self-determination.  Any political society – government—that prohibits self-determination explicitly rejects popular sovereignty, and whether the form and style of government is a republic or a democracy is, therefore, completely irrelevant and inconsequential.

States were our initial political societies.  The people of each state, through independent acts and without any outside influence, created a State.  The people delegated certain powers to their State.  Thirteen of these states were formally recognized as of July 4, 1776.  In modern contemporaneous definitions states are countries or nations.  The term, State, may have several definitions but for purposes of our governing documents and historical understanding it means “the people composing those political societies in their highest sovereign capacity”.

The people of each free, independent, and sovereign state organized their political society according to a written constitution.  The people of each state decided which powers to delegate and which to retain.  Thus, the principle of self-determination was firmly established in each and every state.

Likewise, both the Articles of Confederation and the Constitution were compacts amongst the States.  Both formed a federative union with the goal of the latter to “form a more perfect union”.  The differences between the two Constitutions are the powers delegated and the structure of the government itself.     Neither was a consolidation of the states into a single unitary national state.

The Constitution was not ratified by the people of all the states as one body politic.  Nor was a majority or super-majority vote of the people stipulated as the process for ratification.  The Constitution was acceded to by the free, independent, and sovereign states (the people of those specific political societies acting in their highest sovereign capacity).  Neither a majority of people as one body politic nor a majority of states could bind another state whether they acceded to or rejected the Constitution.  It was the voluntary act of the people of each State to determine whether to join together in a federative union with the people of other States so disposed to do so.  The Constitution was clearly a federal compact amongst the states that so ratified the document.

In practice, the new government under the Constitution was established and put into effect by only eleven states.  The States of North Carolina and Rhode Island had not ratified the Constitution and were excluded from the operations of the new government under the Constitution.  The other eleven states could not compel those states to accede to the Constitution, nor could the newly formed federal government coerce those states through the use of force.  The process was voluntary not coercive.  It was the sovereigns exercising their right of self-determination.

Demonstrably, the accession to join the Union through ratification was never done by one body politic but by thirteen free, independent, and sovereign bodies politic known as States.  Article VII of the Constitution is clear; the votes of nine states (the people or their delegates) would serve to put the Constitution into effect.   The historical record has no reference to a majority of states obligating other states to join the Union.  That point was proven beyond any doubt when the new government went into operation.  Neither Rhode Island nor North Carolina had any Electoral College votes when it came to electing George Washington as the first president.  Likewise, neither state appointed Senators and neither state held elections for the House of Representatives.  Congressional laws had no authority over these two states.

Established in the Declaration of Independence and embodied in both federal constitutions political power is based upon the consent of the sovereign people; initially through forming political societies known as states, and the people of each State – independent from every other state – forming a federative Union with the people of other States under a written Constitution.  The federal government was the creature created by the act of the States.  The federal government was not a party to the Constitution as it was the result of the Constitution.  Thus, the Union, under the Articles of Confederation or the Constitution was birthed from an act of the States (the people of those specific political societies acting in their highest sovereign capacity).

Remarkably, the historical record is abundantly clear on this issue, yet some believe the Union pre-dated the States, the States are administrative units (like counties to a State) to the federal government, and the Constitution established a consolidated national government.   This assertion is nothing more than what the Tenth Amendment Center calls it; a crackpot post-antebellum theory.   The theory was espoused by those like Supreme Court Justice Joseph Story, Senator Daniel Webster, and President Abraham Lincoln.  Generations of people now view this crackpot theory as historical fact.  In reality, it is a historical lie.

Does it matter if the prevailing orthodoxy is considered the truth?  Indeed it does.

If viewed hierarchically, the people formed the States, than the people of the States formed the Constitution which formed the federal government consisting of three branches which are governed by the rules set forth in the Constitution.  The elected and appointed officials are beneath each of the three branches.

The crackpot post-antebellum theory posits that the federal government created the States and that the federal government is supreme in everything it does.  Implicit in this theory is that the government itself is the sovereign, not the people.  If this were true the entire political society is not based upon self-determination (consent of the governed).  Paradoxically, it turns self-determination on its head and supplants it with absolute rule and power by government as the source of all political power and rights.  This was Lincoln’s belief and his justification for war to preserve the Union.

Ironically, the federal supremacists purposely refer to the union as a nation, and the republic as a democracy, and often refer to the government as one that is by the people, of the people, and for the people.  The federal supremacists even reference the Constitution’s preamble “We the people of the United States” to reinforce the idea of national democracy.  Furthermore, the federal supremacists reference the Supremacy Clause to support the assertion that the federal government is supreme in everything it does.  These are the arguments of tyrants and despots.

First, the original Constitution says “We, the people of the United States,”.  The commas are generally not included any longer in the text of the Constitution.  Secondly, the term United States is used to refer to each of the several states without explicitly naming them.  The first two drafts of the Constitution said “We, the people of Maryland, Virginia, New Jersey, etc.”  The states were enumerated.  However, the Committee on Style modified this to the United States primarily to avoid embarrassment.   The drafters did not know which states would ratify the Constitution and which states would not.  If all thirteen states were enumerated and only nine states were required to put the Constitution into effect what would they have done to eliminate the names of the States that did not ratify the Constitution.  The term “United States” is shorthand for all the several States ratifying and acceding to the Constitution.  Lastly, the term does not refer to any one body politic nor does it mean the consolidation of the States.  If the states were intended to be consolidated the preamble would say “We, the people of a United State,” and the ratification process would have been by all the people as one body politic where the minority could be bound by the majority.

The Supremacy Clause does not establish the federal government as supreme.  In fact, the Supremacy Clause establishes Supremacy of Law.  The federal government is one of few and defined powers.  All powers under the Constitution fall under one of three categories; those exclusive to the federal government (or prohibited to the States), concurrent powers (both federal and state can exercise the power), or everything else.  We know through the historical record the federal government is one of limited powers.  The proponents for ratification (the Federalists) gave explicit guarantees at the state ratifying conventions that the powers delegated are limited to those enumerated.  In fact, in many cases, the Federalists said any law made that was not in pursuance of the Constitution was null and states were not obligated to abide by any law afoul of the Constitution.

A few powers fall into the first category – those exclusive to the federal government or prohibited to the States.  Even less powers fall into the second category of concurrent powers. Typically, taxation and commerce are the two powers referenced in this category.  Finally, the third category encompasses all other powers.  All other powers are too numerous to document or enumerate.  Those powers are reserved to the states or the people.  Supremacy of Law dictates that if a power is a state power then the State power is supreme.  Likewise, if a power is exclusively a federal power then the federal power is supreme.  Only those laws made by Congress that are in pursuance of the Constitution (meaning within the powers in the first two categories) are supreme.

Any law passed by Congress is not in and of itself supreme.  Even a law that is upheld by the Supreme Court doesn’t make the law supreme.  The Supreme Court is not the sole and final arbiter of the Constitution.  If that were true it would make the judicial branch supreme over the other two branches and violate the principle of co-equal branches, and it would place the Supreme Court above the Constitution itself.   Since the Constitution and the three branches are creatures of the states (the people of each state) it is the people of the States in their political sovereign capacity that are above the Constitution not the Supreme Court.  If the Supreme Court were the sole and final arbiter then any law could be, in theory, constitutional including the most absurd laws one could dream up.  The people of the States did not create a federal government to then empower it to judge its own powers.  The people of the States did not agree to unlimited submission to a central power.  The States, as parties to the compact that created the Constitution and the federal government, have the power to judge for themselves whether a law is constitutional or not.

Some people argue the States adjudicating a law as constitutional or not would result in chaos and anarchy.  Undoubtedly, there could be differences amongst the states.  However, under federalism, the character of each state was never intended to be uniform or held to a national standard.  Conversely, to believe in the Supreme Court as the sole and final arbiter places power in the hands of the creation not the creator.  And, under this situation any law upheld by the Supreme Court would be constitutional.

Historically, there have been terrible rulings from the Supreme Court.  The Dred Scott case, the Fugitive Slave Law of 1850, the Legal Tender Cases of the 1860s and 70s, the Wickard Case and the separation of church and state case in the 1940s are examples of cases where the Supreme Court declared something that was unconstitutional, constitutional.  In theory, the most heinous laws could be enacted such as forced sterilizations, a one child per couple law, a tax on 100% of your income, a law declaring a single national religion, a law putting disabled or handicapped children to death, etc. Any law could be constitutional under this system.

The federal supremacists are the ones promulgating the idea we are a democracy and it is a country by the people.  The very same people deny the right of self-determination through coercion and violence.  The very same people then point to the Supreme Court as the politically appointed guardians of the prevailing orthodoxy to subvert the right of self-determination.  The contradiction is astounding.  If the people are the sovereigns why do so many support the federal supremacists who assert one person can decide anything and everything that is lawful.  If the Supreme Court rules 5-4 on any case, no matter how heinous or repulsive, then one person rules over 310 million people.  If the people are sovereigns, how can the will of the people be supplanted by the will of one person?  If government is based upon self-determination (consent of the governed) how can one person’s (a judge) decision be authoritative and binding over the sovereigns?  If mankind is incapable of governing himself then why would anyone believe man is capable of governing other men?

Lastly, as our political societies are based upon self-determination violence cannot be used to force compliance against the will of the people.  Might makes right annihilates consent of the governed.  As the people of the States each acceded to the Constitution, the people of the States can secede from the Constitution.  If you reject this idea then you reject self-determination and your embrace the federal supremacist’s position that might makes right and absolute power is the basis for all political societies.  That means you believe this question is only answered on a battlefield rather than a peaceful resolution based upon the self-determination of the people.  If you believe your view and your opinion is right then you’ll use violence to validate it.  And that very belief and the subsequent use of violence to enforce it is the antithesis of self-determination.

When push comes to shove and the people of one or more states exercise their right of self-determination, will you use violence against them and force them to remain in a political society against their wishes?  Will you ask the government to call out the military to kill your fellow citizen because they simply want to exercise their most basic fundamental right of self-determination?   If so, then you support the totalitarian regimes under Lenin, Stalin, Mao, Pol Pot, and Hitler as their entire political system was diametrically opposed to self-determination.  Those political systems were based upon state sponsored violence and military domination over the people.

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Virginia, Popular Sovereignty, and the Federal Supremacists

This May, one hundred and fifty two years ago, Virginia seceded from the Union.  Historically, April 1861 is considered the official date when Virginia seceded, but that date represents the vote of a special convention on the topic of secession.  By early March 1861 seven states seceded from the Union. Virginia’s special convention was convened in February 1861 and two votes for secession failed.  The second vote failed by a 2/3rd to 1/3rd margin. It wasn’t until the third vote that the Virginia convention voted to secede.  What changed their minds?

The third vote occurred on April 17, 1861 exactly two days after Lincoln’s proclamation calling for 75,000 volunteer troops to invade the south.  It was the threat of federal coercion and invasion by Lincoln that persuaded convention delegates to vote 88-55 in favor of secession.  However, the secession vote was not binding on the people and the issue went to referendum.  On May 23, 1861 the referendum took place and the citizens of Virginia voted overwhelmingly to secede from the Union.

The vote was 125,970 to 20,373.  To deem this a landslide would be an understatement.

Let’s pause here and recall events from 1776 through the late 1780s.  Virginia seceded from Britain in June 1776 before the Declaration of Independence was signed.  Virginia, like every other state, was a free, independent, and sovereign state.  Each of the thirteen colonies seceded from Great Britain.  The Declaration stated, “That these United Colonies are, and of Right ought to be Free and Independent States; that they are absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; 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.”

In other words each state was a country.  Notice Great Britain is referred to as “the State of Great Britain”.  All thirteen states were free and independent States (countries).

The Declaration of Independence also established certain fundamental principles:

  • All men are created equal.
  • They are endowed by their Creator with certain unalienable rights.
  • The purpose of government was to better secure these unalienable rights.
  • Government gets its power from the consent of the governed.  This is the basis for self-governance and self-determination.
  • The people always possess the Right to alter, reform, or abolish government when it no longer serves the purpose for which government was instituted.  This applies to all governments (state and federal).
  • The States are sovereign.  The States are free and independent.  In modern terms, the States are countries.

The second secession occurred when states ratified the Constitution.  The states seceded from The Articles of Confederation and Perpetual Union (one form of government) and created another form of government under the Constitution.  This was a peaceful secession.  The people of each state acted independent from the people of every other state.  A vote by the people of New Jersey had no binding impact on the people in any other state.  We, the people of the United States, simply meant the people of Virginia, and the people of New Jersey, and the people of New York.  There was no single body politic referred to as “the people”.  There was no vote of all the people of all thirteen states.  The method of ratification was not based on a majority vote of people or even a majority vote of delegates across all the States.  The method of ratification was an up or down vote on a state by state basis.

Recall, the Constitution went into effect once the ninth state ratified it.   The states remained free, independent, and sovereign.  Each state remained a country.  The Union created by the States ratifying the Constitution did nothing to change this fact.  The Constitution delegated limited powers to the new government, established the structure of the new government, and reserved all other powers to the States or the people.

Federal supremacists such as Supreme Court Justice Joesph Story, Daniel Webster, and Abraham Lincoln maintain a diametrically opposing view on this issue.  The federal supremacists believe the states were created by a national government and were nothing more than counties or administrative units to the national government.  In other words, states were no longer sovereign, free, or independent.  Instead, the federal supremacists believe the states are subordinate to the national government as mere administrative units or counties.

There is much debate on whether the Constitution created a confederated Union or a consolidated Union.  Federal supremacists believe the latter in all cases.  The answer is the Constitution created a primarily confederated union with some consolidated features.  I believe it is best described as a consolidated union when dealing with external issues such as war, relations with foreign countries, and international commerce; and a confederated union when dealing with internal issues.  James Madison echoes these sentiments in Federalist 51.

Another way to view the issue of confederated versus consolidated Union is in the study of the powers delegated.  All powers fall into one of three categories; those powers exclusive to the federal government (and those prohibited to the States), concurrent powers (where both federal and state governments have powers), and everything else is retained by the States (or the people of each State).  It is beyond any reasonable doubt that the powers delegated to the federal government are limited to those enumerated.  The documentation from the state ratification conventions proves demonstrably this to be true.  In every state where documentation is available the proponents for ratification repeatedly stated that the new government is one of limited and enumerated powers.  It was the proponents of ratification that insisted the Constitution would be strictly constructed.  These assurances regarding the meaning of certain phrases and the new government’s strict adherence to enumerated powers are the authoritative sources for understanding the original meaning of the Constitution.  Lastly, the proponents repeatedly state that what wasn’t delegated was reserved.  In other words, if the Constitution is silent on a power or an issue that means it wasn’t delegated to the new government.

In their ratification documents several states also included statements to the effect, “the state reserves the right to withdraw or rescind any delegated powers if it deems it is best for the people of the State”.  Furthermore, many states insisted on a Bill of Rights as part of their ratification.  Opponents of ratification were concerned that even with the assurances made by the proponents of ratification, that they wanted further restrictions and declaratory clauses secured in a Bill of Rights.   So, the Bill of Rights was passed as restrictions on the federal government or declaratory clauses regarding rights not enumerated and powers not delegated are reserved.

Fast forward to modern times and too many people believe the federal government is supreme in anything it does.  People also believe we are a nation instead of a union, and a democracy instead of a constitutional republic.  What’s more astounding is the contradiction between those that believe we are a democracy and the idea that nine people in black dresses can override the popular sovereignty of the people.  If the people are the sovereigns and the government is our agent then it is the people that sit above the Constitution.  If you believe we are a Democracy – where the majority of the people rule – it contradicts the very premise that one person in a black robe can rule over everyone else (in a 5-4 decision it is the opinion of one person).  How could one judge know better than the majority of people?  How can one judge’s opinion outweigh the will of the people for whom that judge serves?  The three branches are subservient to the Constitution including all the judges.  This means the judges serve the people.  Whenever the people acquiesce to allow nine judges to decide everything on their behalf and blindly believe it is binding upon them, the people wittingly (or not) surrender their popular sovereignty – their ability for self-governance and self-determination — to nine other human beings with deleterious and calamitous consequences.

This mindset is the antithesis of federalism and republicanism.  This mindset transforms the people from citizens with all the political power to subjects begging the very government they instituted for their life, liberty, and property.  It would be hysterical if it weren’t so perilous.

Now, let’s return to Virginia seceding from the Union in 1861.  The question of secession remains unsettled to this day.  There have been three secessions in our history.  Though I don’t believe secession is a legal question, for those that do the legal question has never been adjudicated.  There were no trials, court hearings, or rulings by the courts on the question of secession.  The federal supremacists believe the Constitution empowered them to preserve the Union though this power was never delegated in the Constitution.  Moreover, the federal supremacists do not believe in the founding principles established by the Declaration of Independence.  In fact, since the federal supremacists do not believe the people have the power or right to secede, why aren’t they fighting for reunification with Great Britain?  For those that don’t believe in secession, why do you celebrate Independence Day every Fourth of July?  You are celebrating secession.

The southern states did precisely what the colonies did… they seceded.  They seceded based on the will of the people in the State, not as one large body politic (across the entire Union).  What Virginians did in 1861 is precisely the same thing they did in June 1776.  The first time they seceded from Great Britain.  The second time they seceded from the Constitution and the government formed by it.  The result of the Virginia referendum of 1861 was an overwhelming statement that the people are exercising their right of self-governance and self-determination.  The people were exercising their right to alter or abolish their government.  This right is a political right that the people reserve (to alter or abolish their government).  This is not a legal question, for if it were, then one person would be empowered with all the political rights of the people of a state.  That power was never delegated nor was the Constitution established to elevate one person to such a prominent role over the will of the people.

Today, too many people believe the government can compel, through violence and force, people to remain within a political society against their will.  How is this any different from slavery where people are forced to work for others against their will?  How can the people who retain the Right to alter or abolish their government expect to exercise that right if government refuses to recognize the popular sovereignty of the people and use violence against them to force compliance?   That’s not freedom.  That’s not liberty.  Freedom and liberty loving people would never subject the people of a State to remain in a Union against their wishes.  On the other hand, federal supremacists reject the idea of self-governance, freedom, and liberty and will use all force necessary against the will of the people.

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