Were the States Sovereign Nations?

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A
defining — but so far unasked — question regarding the Civil War
is the political status of the states: specifically, was the “United
States of America” indeed, as our popular Pledge of Allegiance claims,
“one nation, indivisible?” Or was it, rather, a union of sovereign
nations, bound only to each other by mere treaty, as with any
other treaty – such as the current United Nations? (As a point
of fact, the term “union” is the only term used in the text of the
Constitution to refer to the United States, while the word “nation”
never appears a single time).

This
question seems to be the proverbial “elephant in the room” of American
law and history, for its answer is key in defining a state’s
right of secession: this question marks the difference between,
for example, Boston seceding from Massachusetts, and Spain seceding
from the United Nations. While in the first instance, few would
question the legal right of state officials to use force in preventing
local urban inhabitants from seceding with a state’s city, such
an exercise against a sovereign nation in the latter example would
be (hopefully) viewed as nothing short of ruthless imperialism
equivalent to that of Saddam Hussein, Adolph Hitler or Genghis Khan.

As
such, similar implications accrue to United States President Abraham
Lincoln from this question, in appraising him as either an
upholder of law or a dictator, regarding his particular
instance in history of using military force. If on
the one hand, the states were held – by law – irrevocably
to the Union, then Lincoln would have simply been performing
his sworn duty as necessary under extreme conditions, and his
defenders might have firm ground in excusing his having
"bent a few rules" to get the job done.

If, however, the
states were indeed separate nations, then this would define Lincoln
as both the ultimate traitor, and most ruthless imperialist of
his time, via breaching his oaths to defend the existing order of a
self-defined republic of separate nations in order to overturn
it in favor of what fits the official definition of an “empire;”
likewise, his defenders and supporters would likewise classify as
both similarly ruthless power-seekers, and what Lenin
termed “useful idiots.”

To
resolve this dichotomy, we must examine the relevant facts:

Lincoln
claimed in his famous First Inaugural Address that “no State upon
its own mere motion can lawfully get out of the Union.” He could
only have been referring to “the Union” as set forth in the Constitution;
for, prior to this, there can be no disputing the fact that the
states were free and sovereign nations – as established in
the Articles of Confederation, which under Article II states that:

“Each state
retains its sovereignty, freedom, and independence, and every
power, jurisdiction, and right, which is not by this Confederation
expressly delegated to the United States, in Congress assembled.”

Here
the term “delegated” requires contextual definition, meaning
literally “to make lesser law;” when powers are “delegated,” they
are merely passed down a chain-of-command to a subordinate agent
by a superior principal authority, in order to provide that agent
with representative “proxy” authority to carry out respective
duties. In no way may does this delegated authority ever supersede
or negate that of the delegating body – any more than a company
employee who is delegated authority by his manager, can give orders
to the firm’s owner, or override the dictates of such. Rather,
such a representative can be overridden at any time at the
behest of the superior – or discharged entirely.

As
such, a “delegation” clause cannot be seen as a compromise
or surrender of sovereignty in any way.

Thus,
the force and effectiveness of this sovereignty which was thus “retained”
from the Declaration of Independence, was equivalent to that of
any other nation; this was made clear in the Declaration, via the
statement:

“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 do
all other acts and things which independent states may of right
do” (emphasis in original).

(Note
that the term “state” used here in the Declaration, is clearly
used synonymously with the term “nation” for the purposes of this
document; as such, the United States had no more claim in binding
South Carolina or Virginia, than it had in binding England or France,
and the term "United States" literally meant "United
Nations.")

Lincoln
and his defenders, then, must believe that the states somehow “surrendered”
their status as sovereign nations, in the act of ratifying the Constitution
(or, as Lincoln added in his First Inaugural, "the union matured”).
However this is negated by the 10th Amendment specification that
powers were merely delegated, i.e.,

“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” (emphasis added).

In
this context, therefore, powers were delegated to the federal
government via the Constitution by the states ratifying it, not
out in the interest of any sort of collectivism, but merely for
the purposes of practical harmony in co-existence – with both
union and non-union nations – solely for advancing the
individual benefit of the respective delegating state.

Meanwhile,
the 9th amendment likewise states that:

“The enumeration
in the Constitution, of certain rights, shall not be construed
to deny or disparage others retained by the people.”

Since
the term "others" as used here, clearly refers to
rights not enumerated in the text of the Constitution,
then it thus implicitly preserves those rights enumerated
via prior documents – such as the Articles of
Confederation, which specifically retains the “sovereignty,
freedom and independence” of every state – which the Constitution
does not exclude anywhere (but rather preserves, since states
would have to retain their sovereign powers in order to delegate
them).

Here
the term “the people” must likewise be defined, with this term referring
to the same “people” referenced initially in the Constitution’s
preamble — and which, as has been well-established elsewhere, did
not refer to all persons in the United States collectively; rather,
the term "the people" refers solely to the citizens
of the states individually and respectively, speaking through their
elected officials — and even then, only those states
ratifying the Constitution at the time.

This
is further implied in the Constitution’s Article IV, Section 2,
statement that:

“The citizens
of each state shall be entitled to all privileges and immunities
of citizens in the several states.”

Clearly,
separate reference to "citizens of each state,” as
opposed to “citizens in the several states,” clarifies
that citizenship was strictly state-specific and derived, and not
union-related in any way whatsoever: in fact, the term “Citizen
of the United States” was never known prior to the passage of the
14th amendment following the Civil War – being a pure post-Lincoln
invention – , and would have no more meaning prior to that
war, than “Citizen of the United Nations” in today’s context to
imply similar supremacy.

As
such, it is clear that the Ninth Amendment implicitly reserved the
right of every state, to the same sovereignty, freedom and independence
which existed previously, i.e., no less than that of any other nation
in the world.

Finally,
even when admitting all of the above, anti-secessionists almost
unanimously claim their proverbial "trump-card" in the
Constitution’s so-called “Supremacy clause” of U.S. Constitution
Article VI, which states that:

“This Constitution…
shall be the Supreme Law of the Land, and the judges in every
state shall be bound thereby, anything in the laws or constitutions
of any state notwithstanding.”

The
level of absurdity in declaring any sort of logical victory, based
on such an obviously flawed argument is astounding; for here the
explicit language regarding this “Supreme Law” clearly, specifically
and unmistakably states – in plain English, no less –
that this “law” is binding on “the judges in every state
— ” and only the judges.

In
contrast, the remainder of the Article omits all other officials
from any such bond, using very different language in describing
its relation to them; to wit:

“The Senators
and Representatives before mentioned, and the members of the several
state legislatures, and all executive and judicial officers, both
of the United States and of the several states, shall be bound
by oath or affirmation, to support this Constitution; but no religious
test shall ever be required as a qualification to any office or
public trust under the United States.”

Any
person literate in the English language — not to mention the language
of law and logic — should be able to recognize that such explicitly
omissive and separate treatment, translates to the fact that the
Constitution does not claim any legal binding effect whatsoever,
on anyone but state judges; rather, such language merely
implies recognition of the Constitution by officials as a mere mutual
good-faith agreement. It is simply absurd, after all, to claim that
the phrase “state judges shall be bound by law, while all others
shall be bound merely by a promise or agreement to support
the law,” somehow translates to the notion that “all officials
are bound by law – ” particularly when the final clause specifically
precludes any religious test from implying the term “oath or affirmation”
as binding via any common "higher law," such as an oath
specifically to God, Allah or the Buddha – even allowing religions
for which oath or affirmation has no higher context.

As
such, the implication here is that the Constitution is a mere treaty
between separate and sovereign nation-states — a treaty which state
officials simply agree to “support,” as opposed to
being bound to obey such as a law, under penalty of
such. Rather, this treaty is written as merely a
bi-lateral agreement, with each side bound solely by its own
conscience and good reputation – and as such, may
be thus dispensed with entirely, if either side believes a
breach of faith has been committed by the other.

To claim otherwise, i.e., that every state committed itself to the
supreme and final binding arbitration (and mercy) of the Federal
government in settling disputes – under force of law wielded
by such – would not only be nonsensical for the purposes of
protecting the states from possible abuses by this same Federal
government, but moreover is nowhere expressed – or even implied
– in the Constitution or any other document.

With
the Constitution thus expressing nothing contrary to individual
states retaining their status as sovereign nations, Lincoln found
it thus necessary to invent such, claiming in his First
Inaugural Address that “Perpetuity is implied, if not expressed,
in the fundamental law of all national governments.”

Here
Lincoln commits a pure logical fallacy – if not an outright deception
– via switching context and assuming, outright, that the
Constitution defines a “national government.” This assumption is
not only supported nowhere in the Constitution or prior documents,
but in fact his statement “implied if not expressed” specifically
contradicts Ninth and Tenth Amendment reservations that
all un-expressed rights and powers — including those of
state sovereignty, freedom and independence — were retained by the
states; even expressed powers of the United States were
likewise mere delegations of state authority – thus implying
their status as separate sovereign nations.

In
conclusion, I cannot imagine why anyone would imagine that separate
nations, would knowingly and willingly surrender their individual
sovereignty — particularly, as in the case of the United States,
after their having just won it via bloodshed from centralized and
consolidated tyranny firsthand, against all believed likelihood
of success; perhaps such persons believe Lincoln’s claim –
which he makes in his First Inaugural Address once again –
that “All the vital rights of minorities and of individuals are
so plainly assured to them by affirmations and negations, guaranties
[sic] and prohibitions, in the Constitution that controversies
never arise concerning them” (emphasis added).

In
like manner, I cannot answer how any rational or thinking person
can be so naive, as to actually believe that any laws or order can
be made so perfect as to preclude any incidence whatsoever of government
breaches or excesses – to the extent of such "never
arising" – so that the supreme protection of national
sovereignty was no longer considered necessary or even desirable
to the people of any state in the Union. Rather, I can only
prove that such supreme national sovereignty was established and
recognized by law for each and every state – and that no law
or document that surrendered or compromised it in any manner whatsoever,
was ever passed or ratified by them.

April
20, 2004

Brian
McCandliss [send him mail]
is a business and economics graduate of Liberty University in Lynchburg,
VA, a law student, and a businessman in Detroit, Michigan.

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