Of Contracts and Constitutions

Harry Jaffa has taken a swipe at Joe Sobran over the issue of the secession of various Southern states. In doing so, Jaffa commits a number of errors.

First, Jaffa misconstrues the nature of contract law. Jaffa writes that

Under the law of contracts, obligations freely undertaken can never be disavowed unilaterally. That the Constitution would by granting a right of secession provide for its own demise — assisted suicide so to speak — is absurd.


There is no reason why a contract cannot be broken by one party to the contract. In legal terms, this is known as a breach, or a unilateral breach. But, of course, the mere fact that one can breach a contract does not mean that such a breach has no consequences. Depending on the facts, you may be liable for damages for breaching your contract.

If the other party to the contract relied on you to do your part, or will now lose other valuable opportunities, you might have to pay him money damages to put him in the same financial state he would have been in had you performed your part of the deal.

There is a related concept of an “efficient breach,” in which it is a more sensible decision to breach a contract and pay damages than to perform the contract. In Pennsylvania, this happened en masse over the past year, as natural gas supply companies repudiated supply contracts due to the fact that they would have been forced into bankruptcy if they had been compelled to supply natural gas at the contract prices, given the massive increase in the costs of natural gas.

Courts, at least in Pennsylvania, recognize that such dire economic consequences may sometimes excuse a party from following through on a contract.

Which brings me to Jaffa’s second gaffe: contract law is a matter of state law.

In the fifty states which make up the United States of America, the everyday laws which we encounter vary from state to state. This is because such laws, specifically, the areas of law broadly known as:

  • Contracts
  • Torts (personal injuries)
  • Property (real estate)

are part of what is known as the “common law.” No legislature ever sat down and passed a law which declared what the common law should be. Instead, the common law in the American states is made by judges, based upon cases already decided, which in turn are based upon what people in their communities actually do.

Rather than law imposed from on high by social engineers, the common law functions as an engine of justice by enforcing what F.A. Hayek defines in the three volumes of Law, Legislation and Liberty as “the rules of just conduct.” As opposed to OSHA regulations which govern the amount of water you can have in your toilet tank, “the rules of just conduct” are concerned with the type of behavior which will be tolerated in a society.

The rules of just conduct, then, are the basis of societies. Societies are not formed by large groups of people coming together and only then deciding at gunpoint what their ground rules will be. Instead, Hayek notes, societies form because people in a geographic area share certain beliefs, namely, the rules of just conduct.

As examples of the rules of just conduct, Hayek points to contracts, torts, and property law. From the law of contracts, Hayek points out that a rule of just conduct (roughly stated) is that “you should honor your obligations” (this would appear to be what Jaffa is getting at). From the law of torts, one can discern the rule of just conduct that “if you injure your neighbor, you must make him whole.” Thus, if you trespass across your neighbor’s land (i.e., enter his land without permission and cause damage), you may be required to pay him for the damages caused. In the law of property, we find the prohibition against theft. In other words, the rules of just conduct include the concept of ownership.

Returning to Jaffa, he is incorrect to state that “obligations freely undertaken can never be disavowed unilaterally.” First, they most certainly can. Whether the breaching party must then pay damages is a separate question. Second, Jaffa wrongly implies that there is a single law of contracts which has been adopted by every state in the forcible Union. Although much of the law of contracts is shared — precisely because of its common law origins in England, such origins being shared by the fifty states — it is not the case that there is any single authority which dictates the law of contracts in the United States. And, it must be noted, there are indeed state-to-state differences in the particulars of contract law.

Third, Jaffa is also wrong to argue that it is “absurd” that a contract might provide for its own demise. Quite to the contrary, it is not at all uncommon for commercial contracts to include provisions detailing how it is that one side (or both) may amend or terminate the contractual arrangement. This, after all, is the essence of a free and voluntary contract — it is not forcible slavery, but rather a voluntary and hence beneficial undertaking. The businessman who spends his life forcing business partners to perform contracts or pay damages rather than showing a willingness to “do business” and be reasonable will quickly find himself shunned in the business community — precisely for seeking to use the courts to enforce at the point of a gun a private deal which was meant to be for mutual gain.

Which is, of course, why many libertarians shy away from the worship of Abraham Lincoln.

Finally, note that Jaffa sticks to a main point also advanced by other Lincoln scholars at the Claremont Institute. Jaffa writes that

In some of his writings, Sobran has asserted that three of the original thirteen states, in their instruments of ratification, reserved the right to secede from the Union. But Sobran has misread those documents. What the states reserved was the right of revolution, as set forth in the Declaration of Independence. But that is a natural right, under the laws of nature, and not a constitutional right. The seceders were careful not to appeal to the right of revolution, since that would be a right to which their slaves might appeal not less than themselves.

As I have previously argued, in Contra Claremont, in Three Views of the Constitution — this is an exceedingly formalistic and weak argument.

Consider this: for Jaffa, even though the Southerners had a natural right to secede (call it the right to revolt if it is a more comfortable word), they wrongly claimed to have a legal right to secede under the Constitution of 1789, and therefore their secession was unlawful.

No. Sorry. Utterly unconvincing.

If the South had a natural right to revolt (which it undeniably did, or else the Declaration of Independence must be denied), then the South was very much justified in seceding. Jaffa argues that the South could not have believed in such a natural right of revolt, as this would have justified slave rebellions. Yes, it would have. Such a natural right of revolution as articulated in the Declaration of Independence also justified slave rebellions in the American colonies when they seceded from England — and yet Jaffa does not contend that the American Revolution was “illegal.”

By the way, did the unwritten English constitution make the American Revolution “illegal?”

In addition, the South certainly had a constitutional right to secede, based on the 9th and 10th Amendments, and the nature of the Constitution as an enumerated document — not to mention the fact that the federal government created by the Constitution was itself the child of secession twice over — first from England, and second from the Articles of Confederation (see my articles linked above for the longer version of these arguments).

Finally, consider the following passages from Jaffa:

Who fired on Fort Sumter? Sobran might as well blame Lincoln for Pearl Harbor. The Constitution that Lincoln had sworn to uphold enjoined him to take care that the laws be faithfully executed. How could he execute the laws in states that claimed to have seceded, and which had seized all the federal property within their boundaries?

Lincoln’s defense of the Union was therefore a defense of the principle of constitutional majority rule, a principle not recognized anywhere else in the world of that time.

There is, of course, no need to blame Lincoln for Pearl Harbor. We can blame FDR, thanks to such writers as Edward Beach and Robert Stinnett. And yet, the Pearl Harbor reference is well-placed: Lincoln paved the way which FDR later followed. Lincoln maneuvered the CSA into firing the first shots of the war so that Lincoln could then prosecute an unconstitutional war (see John V. Denson’s chapters in The Costs of War, 2nd ed., and Reassessing the Presidency).

Jaffa, by the way, ignores that numerous federal properties and forts had been seized by the Southern states after secession — and seized with very good reason. After all, if your state is no longer part of the USA, by what right does the federal government of the USA continue to claim such properties?

Should various forts on the eastern seaboard continue to be regarded as British?

Worse, Jaffa ignores that the South offered to pay compensation for the properties which were taken. Remember the efficient breach theory of contracts? Lincoln, of course, refused such offers.

Worst of all, Jaffa ignores the fundamental issue at stake in arguing over secession by wondering “How could [Lincoln] execute the laws in states that claimed to have seceded, and which had seized all the federal property within their boundaries?”

He couldn’t. And there is a very sound reason why he couldn’t: he wasn’t supposed to, since they were no longer under his authority, as they were no longer part of the USA, by the decision of their own citizens. The principle of “constitutional majority rule,” then, was recognized elsewhere than the USA which Lincoln sought to extend — or rather, preserve from shrinkage — by force of arms. It was recognized in the CSA, which did not establish a dictatorship with its own Constitution, but established a federal government which improved upon the USA Constitution of 1787.

Pace Lincoln and Jaffa, the secession was not the death of representative government, but an instance of representative government. The Southern states — as David Gordon notes, fully respecting the fact that Lincoln had been elected — realized that they would simply be dictated to by the North under Lincoln — left the voluntary union known as the USA (which is a political compact, not a marriage).

One final point: Jaffa repeats a common error in treating “the Southern states” as a monolithic entity. True to their principles, the States seceded qua individual states. Virginia, Tennessee, Arkansas and North Carolina, for example, seceded only after Lincoln called for troops to invade the states that had already seceded. Their reason for seceding? The same reason that former president Franklin Pierce expressed in opposition to the war, and for which Secretary of War William Seward wanted President Pierce arrested, namely, Lincoln had no constitutional authority to invade a state with a federal government army.

Do I expect any of this to change Harry Jaffa’s mind, or the minds of any of the scholars at the Claremont Institute? Of course not. At some point, a man’s mind is set. That being said, I disagree with Harry Jaffa on the greatness of Lincoln and the legality of secession. My thanks to Joe Sobran as one among many who helped me along the way — because I used to think just like Harry Jaffa.