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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