Of Legal Fictions and Pro-Lincoln Libertarians: Reply to Sandefur

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In a recent blog post, I critiqued Timothy Sandefur’s article "Liberty and Union, Now and Forever" (Liberty, July 2002). There Sandefur argued that libertarians should not side with the Confederacy in the War Between the States. The December 2002 Liberty carries Sandefur’s article "Why Secession Was Wrong," his response to the many libertarians who have disagreed with him.

Sandefur’s view is that Lincoln had the right to prosecute the Civil War in order to prevent the Southern states from seceding, because the states had no constitutional right to secede.

Non Sequitur

Sandefur’s entire argument is a non sequitur, since the conclusion (the USA was justified in attacking the CSA) does not at all follow from the assertion that the states had no constitutional right to secede. Even if the states were constitutionally barred from seceding (a big if), it does not imply that Lincoln’s cause was the libertarian one.

For example, states might have a natural right to secede even if they do not have a constitutional right. Surely a libertarian would not side with positive law over natural law when arguing whether state force is justified. So what if there is not a right to secede enshrined in positive law? Positive law also does not recognize my right to be free from taxation or conscription, despite my having these rights.

And even if the states had neither a constitutional nor a natural right to secede, this still does not imply that Lincoln’s war was legally or morally justified. In law and in justice, the response to an unlawful action must be proportional to the offense. It is doubtful that causing the deaths of 600,000 people in response to what is, at most, basically a breach of agreement, is consistent with principles of justice and proportionality. Just as executing a bubble gum thief is unjust, so mass murder and invasion is an unwarranted response to one state’s quitting its agreed-upon association with other states.

And the fact that states are themselves in reality little more than criminal gangs makes it even harder to justify a Civil War—like response. If Mafia A and Mafia B agree to a perpetual criminal consortium, and Mafia A some day decides to go its own way, Mafia B is not justified in conscripting innocent civilians under its dominion and using them to murder the conscripts and other innocents under the control of Mafia A.

Natural Law versus Government Law

And finally, even if the federal government had a clear constitutional right to wage war against the South — aren’t we supposed to be libertarians here? Don’t we care more about what is right and wrong, what is justified and not, than about what happens to be the state’s current laws and decrees? Why do we care so much what is constitutional or not, when we are talking about libertarian principles of right and wrong? Income tax is constitutional. Is it thereby libertarian? Prohibition was at one time constitutional. Did that mean jailing vintners was justified?

Similarly, how can the War of Northern Aggression be justified merely because some state’s positive laws allegedly "permit" it? Let’s see: we have a war waged by a large, clearly non-minimal, non-libertarian (i.e., criminal) state (the USA), using massive force (taxation, regulation, conscription) against its own citizens and killing hundreds of thousands of foreign citizens (those of the CSA). In prosecuting the war, the USA repeatedly violated individual rights and the international laws of just war. One would think the libertarian presumption would be that the war and the state that waged it would be clearly unlibertarian, regardless of the positive laws that might permit it.

But no; apparently, it works like this, according to libertarian Civil War apologists: slavery was an evil practice; ergo, it is somehow acceptable under libertarian principles for one criminal state to conscript, tax, regulate, kill, maim, steal, loot, torture, intimidate, centralize, and commit mass murder — so long as later on these actions can be colored as having been done "in order to" stop slavery. In other words, although libertarianism holds that aggression is impermissible, wrong, and immoral, there’s an exception: if the aggression is "meant" to help bring about the liberation of some black slaves, then it’s okay.

The Fiction of "The People"

Another problem with Sandefur’s approach is his extensive reliance on legal fictions. He had stated in his first article that it was not "States" that were parties to the Constitution, but rather, the "whole people of America." Therefore, as the Constitution is not a "treaty" between separate States, none of the States can "withdraw" from the treaty. States cannot "break the constitutional compact," because they are not parties to it; "the people" as a whole are the parties to it.

I responded that the Constitution itself provided, in Article VII, that "The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the same" (emphasis added). Therefore, the Constitution was established "between" the first nine States to ratify, upon New Hampshire’s ratification (it was the ninth). This of course implies that it was individual states that could either join, or not join, the union of states defined by the Constitution. As an example, if one of the thirteen American States, such as Rhode Island, had decided not to ratify, there would have been a Constitution by and between twelve United States, with Rhode Island being left out of the compact.

In his latest response, Sandefur uses much space making the irrelevant side-point that it is not proper to call the Constitutional compact a treaty, and cites Federalist Papers and other documents to show that a Constitution "was regarded" as "different" from a treaty. Alright, fine, the federal compact is somewhat different than a classic treaty. So what? There are lots of sui generis "international" entities or organizations, such as the United Nations. Standard principles of contract and treaty interpretation of course still apply when construing the meaning and effect of the terms used in the founding documents. Whether we should regard the Constitution as a treaty or not is irrelevant to my point. Call it what you like, the Constitution still provides that it is effective only between the states ratifying it, after at least nine of them have ratified. This of course implies that the Constitution is like an agreement, or treaty, between the parties to it, i.e. the states that ratified it.

Sandefur repeats and presses the argument that the Constitution "was created" by "we the people" not by "we the states." But what about my previous point that, if a state such as Rhode Island had not ratified, then the new US could not force them to join? Sandefur seems to admit this is true (he quotes Madison to this effect), "[b]ut this does not contradict the fact that where the Constitution was ratified, the people of the United States become one people for particular purposes — that the Constitution was ratified by the people and not by the states."

Hunh? What the heck does this mean? How, exactly, is it that "the people" "ratified" the Constitution? This kind of reasoning heavily relies on "social contract" type legal fictions. Consider the implications of what Sandefur is claiming: If the so-called "representatives" from 13 states arrive at a convention, hammer out a document beginning "We the states agree to the following" and the state governments then ratify this document, then it’s a compact "among the states." But, see, if these same representatives convene and forge a document beginning, "We the people of the states agree to the following" — and the states duly ratify, then it’s now some kind of irrevocable agreement "among the people"?

How, exactly? Isn’t there some sleight of hand going on here? How exactly did these government employees cause "we the people" to irrevocably bind ourselves to anything? Just because the representatives arrogate to themselves the right to decide for their neighbors?

Are We Libertarians or Mere Parsers of Government’s Holy Writ?

Libertarian ladies and gentlemen, let’s step back a second from all the legal fictions and the romanticized, nostalgic notions about the 18th century and examine what the real issue is. We libertarians oppose aggression, whether committed by states or by private criminals. We therefore oppose unrestricted states, because they are dangers to liberty. When we see what appears on its face to be an extreme case of aggression, committed by a state that is clearly not a minimal state, a state that is blatantly disregarding the limits set out for it in the Constitution — and when we see that one of our own claims that the apparent aggression is actually consistent with libertarianism, we are entitled to examine these claims closely.

Now the CSA was surely not a libertarian minarchy. It systematically violated individual rights, as all states in history have. And so did the USA. By any libertarian standard, both CSA and the USA were unjustified, criminal, unlibertarian entities.

In any event, the USA was clearly a large state grown far beyond proper boundaries, even by classical liberal standards. And Lincoln violated the Constitution repeatedly, as Sandefur acknowledges. And 600,000 people were killed (murdered, one might say). And a rapidly growing centralized state was set in motion, one that has continued to grow and become more invasive to this day.

Clearly this is a prima facie case of unlibertarian, unjustified, wicked, immoral actions committed by an unlibertarian, criminal, non-minarchist state. And yet here we have a libertarian, writing in Liberty magazine, seeking to justify this. And his reasons are… that he can’t find in the Constitution a "constitutional right to secede"? What? What does this have to do with anything? How does the lack of textual support for a constitutional right to secede justify the murderous actions of Lincoln et al.? Have we forgotten who we are? We are libertarians! We should cringe at the thought of the taxation, the conscription, the dispossession, the theft, the bloodshed, the lives lost and ruined, by the Civil War. The hundreds of thousands of poor, young men murdered by minie ball and bayonet. Men with their heads split open, men dying in pain and fear and misery on strange ground. We should oppose this with all our passion. We should not sift through government documents trying to find some "implied" sanction for government tyranny. We should not do the state propagandists’ work for them.

We have this marauding state pouncing all over this beautiful continent, growing larger, disregarding its paper limits, killing, maiming, seizing — and one of our brethren defenders of liberty seeks to justify all this…because he can’t find textual support for a right to secede? No. No. I cannot justify the misery visited upon black slaves by their masters. But neither can this murderous aggression be justified.

Trotting out these ridiculous legal fictions does not change anything. Sandefur says it was "we the people" instead of "the states" who "really" ratified or "joined" the Constitution. This does not hold water. First: "the people" never ratified anything. Lysander Spooner explained this long ago in No Treason. No. VI, The Constitution of No Authority. Consider Georgia, one of the original 13 states to form the USA. Did all of its citizens ratify the Constitution? No. Did all of them ratify, at least, through representatives? No — blacks and females and minors and many others under the state’s jurisdiction didn’t select its representatives. And what about those who voted against the representative or his policies? Could the representative bind them too? (Are libertarians supposed to be democrats now?)

And even if there had been a unanimous vote by all the citizens in favor of ratifying the Constitution — why do we assume they could not change their minds later? After all, our fundamental rights are said to be inalienable; one may not sell oneself into slavery, for instance.

And even if there were unanimous consent by all the people of a state, this does not bind future generations. When did the generation of 1861 reaffirm the union? Jefferson knew that one generation could not bind the next: "no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation.” (Thomas Jefferson to James Madison, 1789)

Lack of Power

As I stated in my original comment,

[W]orst of all in my view, Sandefur tries to show that there was no "right to secede" built into the original constitution; there was no explicitly recognized "permission" to secede. Sandefur here appears to miss the entire concept of enumerated and limited powers, i.e., the idea that the federal government has power to do only that which is authorized by the Constitution (see ninth and tenth amendments). It does not matter whether the Constitution explicitly provides for the right to secede. What matters is whether the Constitution empowers the federal government to go to war against a seceding state. This power is not granted. (Just take a look.) Therefore, the right to secede is implicit in the very structure of the Constitution. […] The Constitution nowhere authorizes or empowers any branch of the federal government to prevent a state from seceding. We do not need to find "permission" for States to secede; rather, the federal government has to find "permission" (authorization) in the Constitution, to stop secession.

This is one of the most powerful constitutional objections to the War of Northern Aggression — for those who have some appreciation for the importance of structural limitations on state power, such as federalism and limited and enumerated powers. What is Sandefur’s response? He simply lists some of the powers enumerated in the Constitution, without telling us which one actually authorizes the forceful stamping out of secession. It must be buried in there somewhere. He writes:

The Constitution — among other things — 1) is the Supreme Law of the Land; 2) guarantees to every state a republican form of government; 3) requires the president to see that the laws are faithfully executed; 4) guarantees the privileges and immunities of citizens when they travel interstate; 5) prohibits states from entering into any compact with another state absent congressional permission; 6) prohibits states from entering into any confederation at all; 7) preserves every state’s right to two senators.

But this proves nothing. Of course, if a state is no longer a member of the Union, then these rules simply don’t apply. As I pointed out previously, Sandefur’s argument re point 2) above is specious, because Art. IV, Sec. 4 merely guarantees "to every State in this Union a Republican Form of Government." If a State secedes, it is no longer, of course, in the Union.

So what does he say to this? Why can’t a state simply stop being a member of the Union, and thereby render the clause inapplicable to that state? Sandefur says that the powers he listed above "would all be rendered meaningless, were a state able to secede unilaterally." Poppycock. First, this kind of argument — making up new powers that are "necessary" to carry out the others — can only be taken so far, if one is truly concerned about limiting government power. For more on this, see Randy Barnett, "Necessary and Proper," UCLA Law Review 44 (1997): 745. I note that Sandefur didn’t use more insidious examples, such as the power to levy income taxes or to conscript soldiers — I suppose that, if states are able to secede, that "renders meaningless" the feds’ power to tax and conscript (boo hoo).

Second, let’s do a gedankenexperiment. Imagine that tomorrow, the 28th Amendment is added to the Constitution, reading: "Any state may, by an act of its legislature, secede from the United States." Now Sandefur might not like such an amendment, but clearly this is both logically and constitutionally possible. In this case, would the mere presence of this provision "render meaningless" the other powers granted to the federal government? Of course not.

Sandefur has to argue the power to prevent secession is "implied" because it is obviously not explicitly enumerated. If the states were really irrevocably binding themselves to the union with no right to secede, and empowering this new federal government to go to war against any of them that tried to quit the union, one would expect this to have been explicitly stated in the Constitution. Even if voluntary slavery agreements were legal, before enforcing such an agreement we would rightly demand that the would-be slave owner provide clear proof that the would-be slave has actually, explicitly, signed his rights away. It would not be left to implication. Of course, the federal power to conquer seceding states was not explicitly stated in the Constitution, because if it had been, the states would never have ratified it. There is no power to stamp out secession, enumerated or implied. Even if it is implied, but not explicitly stated — that’s not good enough. The central state needs more than an "implied" power to even begin to justify waging war and killing almost a million people.

Sandefur thinks he is defending the rights of slaves and of "good" government versus "bad" government. In thrall to modern legal fiction and romanticized notions of the state, he endorses state tyranny, unlimited government, mob rule, and mass murder, all in the name of liberty.

Stephan Kinsella [send him mail] is an attorney in Houston. His website is www.StephanKinsella.com.

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