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