New at Live Action – Kansas Judges in Hot Water for Donating to Pro-Life Cause

A bit of a scandal is brewing in Kansas over two sitting judges, Eric Yost and Jeffrey Goering, who have each donated $100 to the Kansans for Life PAC, yet have not recused themselves from abortion-related cases. This is perfectly legal in Kansas, but not everyone is satisfied:

“Judges are held to the highest conduct standards, and they should be,” said Adam Skaggs, senior counsel at the Brennan Center for Justice at New York University’s law school. “The best practice is going to be to avoid contributing to political organizations because of the inevitable appearance of partiality that those kinds of donations create.”
Kansas Sen. John Vratil, a Republican member of the Senate Judiciary Committee and an attorney, said he wants to examine the state’s rule for political contributions by judges.
“It can’t be good for the judiciary because it reflects on their impartiality,” Vratil said.
While the Kansas Code of Judicial Ethics broadly prohibits activities that appear to present a conflict of interest, it also specifically allows judges chosen in partisan elections – as Yost and Goering were – to make contributions to political organizations “at any time.”

The federal court system’s Code of Conduct forbids judges from contributing to specific parties and candidates for office, but doesn’t explicitly say they can’t donate to issue-based organizations.
Read the rest at Live Action.

Allahpundit Doesn’t Get It

And by “it,” I’m referring to Rick Perry’s answer on why he (now) backs a Federal Marriage Amendment.
Perry:
It’s part of the fabric of America to support traditional marriage and that being between one man and one woman. I led the charge back in the mid 2000′s in Texas when we passed a constitutional amendment that defines marriage as being between one man and one woman, passed by 75%, that’s rather overwhelming. But I do respect a state’s right to have a different opinion and take a different tact if you will, California did that. I respect that right, but our founding fathers also said, ‘listen, if you all in the future think things are so important that you need to change the constitution here’s the way you do it’. It takes three quarters of the states deciding that this is important, it goes forward and it becomes an amendment to the United States Constitution. I support that for issues that are so important, I think, to the soul of this country and to the traditional values which our founding fathers, on the issue of traditional marriage I support the federal marriage amendment.
Allah:
Why would you want an amendment in a case where you respect a state’s right to have a different opinion? The touchstone for an amendment, I would think, is when you don’t respect that right because a particular state’s legislative preference would lead to grievous harm. Slavery is the paradigm example; abortion, arguably, is another. If you can look at your opponent’s position and say, “I see your point but I think you’re wrong,” that should take the amendment option off the table and put you back in Tenth Amendment territory. Federalism is “part of the fabric of America” too, after all; as a wise man once said, “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Perry’s arguing, I guess, that this experiment is simply too dangerous to conduct — except, actually, he never does say that it’s dangerous. He just says it’s contrary to “traditional values,” a standard that would prohibit “novel social experiments” altogether. And the kicker is that he’s couching his argument in terms of Article V, which is the most “non-traditional” part of the Constitution insofar as it lets future generations change the law as opinions change. Well, opinions are changing. Why use Article V to stop it if you can’t articulate some sort of overweening harm?
That’s fair enough as a critique of Perry’s case for the FMA, but Allah talks as if that’s the only pro-FMA argument he’s familiar with. He’s been manning one of the blogosphere’s top center-right blogs for years, and yet he’s this ignorant about the pro-side?
To summarize, the case for a Federal Marriage Amendment is simple: first, it’s the only thing that will truly insulate marriage from judicial activism, and second, marriage is so vital to the continuance of a free society that the United States must insist on a uniform definition. For further edification, I prescribe the following articles:

New on RedState – Video Gamers: The Latest Pawns of Big Government

My latest RedState post:
A recent Fox News segment concerning federal funding for video games has provoked outrage from gaming news websites, and while the hyperventilating of professional nerds might not seem noteworthy at first glance, the sad spectacle deserves to be revisited because it offers a troubling window into how liberals consolidate political influence over apolitical constituencies.
The National Endowment for the Arts has decided that video games of particular artistic or educational merit can qualify for federal grants, so Fox ran a debate on the decision between Icrontic.com editor-in-chief Brian Ambrozy and conservative radio host Neal Asbury. Admittedly, the Fox anchor wrongly suggested that big-budget action games like “Call of Duty” were the NEA’s focus rather than smaller projects by independent developers, and Asbury didn’t perform particularly well, having little more to offer the discussion besides generic platitudes about runaway spending. But the geek brigade saw something more nefarious at work.
Kotaku.com’s Owen Good complained that Fox had “no intention of” respecting the “gaming-as-art point of view.” CJ Smillie of GameRant.com criticized Fox for “attacking” the “idea of games as an art form.” At EscapistMagazine.com, Tom Goldman accused Fox of “using the general ignorance of the public” about video games “for their own ends.” Ambrozy himself later called the segment “media brainwashing of the highest order,” through which Fox was poisoning its viewers’ minds against “our world and our generation.”
Speaking as both a member of Ambrozy’s generation and an avid gamer, I feel a special obligation to call out nonsense spouted by pompous hacks claiming to represent me. 

Is Abortion Already Illegal?

Because abortion is ultimately a question of basic human liberty and not just good or bad policy, I have never agreed with those conservatives who think “leaving it to the states” is a sufficient solution to the issue (though it would be far preferable to the anti-democratic status quo forced upon us by Roe v. Wade). I instead support a Human Life Amendment to the U.S. Constitution, to protect the right to life nationwide. States should be able to do many things, but treating certain classes of human beings as property is not among them.
However, until the HLA becomes reality, I have also been wary of banning abortion via an act of Congress, for fear of violating the boundaries of Congress’s enumerated powers under Article I, Section 8 of the Constitution. The 14th Amendment, which was enacted to guarantee political rights to newly freed black Americans after the Civil War, seemed to come close to authorizing Congress to ban abortion, but the language about “all persons born” was always a hang-up for me.
But is that really a barrier? After closer contemplation of the 14th Amendment’s language, I’ve concluded the answer is no. Here are the relevant passages in their entirety:
Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
There’s no question that this empowers Congress to prevent states from treating their inhabitants unequally or depriving them of life, liberty or property. But do the unborn count among those inhabitants? Let’s go line by line:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.
So whatever else you are, you’re not a US citizen until you’re born.
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; […]
When taken with the first sentence, this pretty clearly indicates that the unborn aren’t entitled to the full slate of “privileges or immunities” a citizen enjoys. So no guns or voting for fetuses. Sorry.
However, the sentence continues:
[…] nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
“Nor” sets up another set of requirements, separate and distinct from the preceding clauses. Here, the amendment discusses protections applicable to “any person,” not “any citizen.” So while some legal protections and entitlements only come with American citizenship, others apply to every human being within our borders, regardless of their legal status.
This makes perfect sense. Legal rights are merely the terms of an agreement made by a particular group of people in their constitution, whereas natural rights are, according to the Declaration of Independence, God-given qualities possessed by every human being, which cannot be justly denied or violated by anyone.
There are obvious reasons why countries don’t want to have to give foreign nationals exactly the same legal protections and benefits as their citizens—for instance, we shouldn’t have to go through a full-blown jury trial every time we want to deport a violent illegal immigrant. But at the same time, we would never want to set the standard that people can do whatever they want to someone just because he’s not an American.
This certainly seems to fit with the original intent behind the measure—as President Ronald Reagan wrote in his famous essay, “Abortion and the Conscience of the Nation”: 
When Congressman John A. Bingham of Ohio drafted the Fourteenth Amendment to guarantee the rights of life, liberty, and property to all human beings, he explained that all are “entitled to the protection of American law, because its divine spirit of equality declares that all men are created equal.” He said the right guaranteed by the amendment would therefore apply to “any human being.”
If the unborn are people—and from both scientific and philosophical perspectives, they clearly are—then the Constitution already requires that their right to life be protected, even without a new amendment explicitly saying so. Any state that prohibits the murder of fully-grown humans while allowing the murder of those in the womb is unconstitutionally discriminating against the latter.
All right-of-center observers agree that the Constitution doesn’t require the right to abortion, but the understanding I’ve just proposed—that the Constitution actually forbids it—is much rarer. Even Justice Antonin Scalia believes the Constitution is silent on the question. Further, conservatives tend to dislike enacting their policy goals through unelected courts on principle. For these reasons, pro-lifers should continue to support the Human Life Amendment anyway, so that when abortion’s long-overdue end finally does come, nobody can plausibly question its democratic legitimacy. But if we manage to save lives by convincing even a few courts that the right to life is an equal-protection issue, so much the better.

Three Lousy Objections to Susan B. Anthony’s Pro-Life Pledge…and One Real One

Republican presidential candidates Mitt Romney and Herman Cain have come under fire for refusing to sign the Susan B. Anthony List’s Pro-Life 2012 Citizen’s Pledge, which reads:
I PLEDGE that I will only support candidates for President who are committed to protecting Life. I demand that any candidate I support commit to these positions:

FIRST, to nominate to the U.S. federal bench judges who are committed to restraint and applying the original meaning of the Constitution, not legislating from the bench;

SECOND, to select only pro-life appointees for relevant Cabinet and Executive Branch positions, in particular the head of National Institutes of Health, the Department of Justice, and the Department of Health & Human Services;

THIRD, to advance pro-life legislation to permanently end all taxpayer funding of abortion in all domestic and international spending programs, and defund Planned Parenthood and all other contractors and recipients of federal funds with affiliates that perform or fund abortions;

FOURTH, advance and sign into law a Pain-Capable Unborn Child Protection Act to protect unborn children who are capable of feeling pain from abortion.
Romney’s instead offered his own pro-life pledge, consisting of good-but-mild promises regarding thinks like opposing Roe and backing the Hyde Amendment, and explaining where SBA goes too far:
It is one thing to end federal funding for an organization like Planned Parenthood; it is entirely another to end all federal funding for thousands of hospitals across America. That is precisely what the pledge would demand and require of a president who signed it. 
I could ask why somebody who claims to understand conservative principles and the original intent of the Constitution is so hung-up on ensuring that hospitals continue to receive federal funding, but here it’ll suffice to echo SBA’s reminder that the pledge doesn’t say anything about defunding hospitals, which “has never been considered by Congress [and] is not part of public debate,” and ask why it would be a bad thing to make abortion so radioactive that hospitals know even tangential dealings with abortion providers could risk their access to the public trough. And frankly, the 5% of hospitals that SBA says do perform abortions should be defunded.
The pledge also unduly burdens a president’s ability to appoint the most qualified individuals to a broad array of key positions in the federal government. I would expect every one of my appointees to carry out my policies on abortion and every other issue, irrespective of their personal views.
Actually, the pledge doesn’t cover a “broad array” of federal posts; merely those “relevant” to life issues, namely “National Institute of Health, the Department of Justice, and the Department of Health and Human Services.” Romney says, “oh, my guys will do what I want, regardless of their own views,” but that’s simply not good enough. For one thing, it’s not enough for the president to have confidence in a public servant; the American people must be able to trust that they’ll execute the law the way we voted for. Can anybody seriously say that they’d be comfortable with a pro-abortion Health and Human Services Secretary, even with a self-described pro-lifer in the White House? For another, abortion is a question of basic liberty, so you can’t just separate someone’s position on abortion from his position on other issues and expect someone who thinks it’s okay to let babies be murdered for convenience to be just fine on everything else.

As someone who strongly supported Mitt Romney last time around (a decision I stand by, as the viable alternatives were still worse), this is the most damning evidence yet that he doesn’t truly take the pro-life cause seriously. (Charles Krauthammer and Bill O’Reilly are full of crap on this issue.)

Herman Cain, meanwhile, says his problem was the wording of point four:
I support right-to-life issues unequivocally and I adamantly support the first three aspects of the Susan B. Anthony pledge involving appointing pro-life judges, choosing pro-life cabinet members, and ending taxpayer-funded abortions. However, the fourth requirement demands that I “advance” the Pain-Capable Unborn Child Protection Act. As president, I would sign it, but Congress must advance the legislation.
Cain seems to be alluding to the fact that presidents don’t have a constitutional role in the legislative process until a bill reaches their desk, which is true, but come on. Rejecting an entire pledge because of one word that wasn’t quite precise enough for Cain is awfully nitpicky, even for a disgruntled constitutional purist like me. Cain’s pro-life street cred is far better than Romney’s, but this is just the latest in a string of bungles by Cain that convince me he’s not ready for primetime.

Now that we’ve got the candidates’ crappy reasons for rejecting the SBA pledge out of the way, we must unfortunately turn to a real problem with it that few people have touched upon. David Kopel explains why the Pain-Capable Unborn Child Protection Act may be constitutionally problematic:
The federal version of PCUCPA is S. 314, introduced by Sen. Mike Johanns (R-Neb.). After the definitions section of the proposed statute, the bill states: “Any abortion provider in or affecting interstate or foreign commerce, who knowingly performs any abortion of a pain-capable unborn child, shall comply with the requirements of this title.”

Federal abortion control under the purported authority of congressional power “To regulate Commerce…among the several States” is plainly unconstitutional under the original meaning of the interstate commerce.

Even under the lax (but non-infinite) version of the interstate commerce power which the Court articulated in Lopez,  a federal ban on partial-birth abortion is dubious, as Glenn Reynolds and I argued in a Connecticut Law Review article. Indeed, in the 5–4 Supreme Court decision upholding the federal ban, Gonzales v. Carhart, Justices Thomas and Scalia, who voted in the majority to uphold the ban as not violating the Casey abortion right, concurred to point out “that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.”

In other words, if the attorneys who challenged the federal ban on partial-birth abortions had been willing to raise all plausibile constitutional claims, instead of losing the case 4–5 they probably could have won 6–3, by assembling a coalition of 4 strongly pro-abortion-rights Justices, plus Scalia and Thomas on the commerce issue.
Clearly, using the Commerce Clause for authorization is every bit as invalid as when liberals do it. Congress’s power to regulate interstate commerce was meant to prevent the states from placing onerous restrictions on interstate commerce. Using it to justify regulations on abortions that cross state lines violates the spirit of the clause, and using it to justify regulations on abortions that don’t cross state lines violates both the spirit and the letter of the law.

Can the bill be justified on other grounds, though? The Fourteenth Amendment says no state can “deny to any person within its jurisdiction the equal protection of the laws,” and empowers Congress to enforce that promise. As Ronald Reagan famously pointed out, the architect of the Fourteenth Amendment, Rep. John Bingham, said the amendment’s guarantee of “life, liberty, and property” would apply to “any human being.” I think a case can be made that the Fourteenth Amendment gives Congress the constitutional authority to prohibit abortion (more on that later), but then we come across another problem: does a measure designed to merely discourage abortion constitute protecting fetuses?

I’m not sure. (UPDATE: Here’s my first stab at the issue.) As much as I want Republicans to fight abortion harder, I also want them to do it constitutionally. At the very least, pro-life policymakers cannot justify exploiting chinks in the Constitution’s armor first made by the Left. And that the trickier legal issues involved can be vexing even among pro-lifers is all the more reason to support the Human Life Amendment.

Of course, any progress on that front would require statesmen of a higher caliber than Mitt Romney and Herman Cain.

UPDATE II: Ramesh Ponnuru has another, more substantive beef with the pledge: 

But this pledge, taken seriously, would preclude me from voting for Mitt Romney against Barack Obama in 2012 — which is to say, that given these entirely imaginable options, it would preclude me from doing what I can to advance the pro-life cause. (It would have precluded me from supporting Bush over Gore in 2000, too, since Bush made no such commitment on personnel.) It would preclude me from voting for Romney in the primaries even if I believed he offered pro-lifers our best shot at replacing Obama with someone who would appoint good justices to the Supreme Court.

On Gay Unions, Walker Restores Will of the People & Respect for the Constitution

In 2006, Wisconsin joined the many states who protect marriage in their constitutions after an ugly battle in which the misleadingly-named gay smear group Fair Wisconsin set a new standard for leftist deception. Voters decisively stood for marriage anyway, in doing so forbidding the creation of any new unions “identical or substantially similar to” marriage under another name.
In 2009, state Democrats said “screw you” to the law and the democratic process by adding to the budget a same-sex domestic partner registry. Now, Republican Governor Scott Walker has nixed the state’s legal defense of the unconstitutional registry. Pat McIlheran talks sense on why Walker made the right call:
The question now is whether a governor ought to defend a law that defies the constitution. “If the governor determines that defending a law would be contrary to the state’s constitution, he cannot order the defense of the law because of his oath to support the Wisconsin Constitution,” Walker’s attorney told the court.

It’s no different than if a past legislature installed a law to set up a state church, for instance, or segregate schools. A governor ought not and cannot defend such stuff. This is no different, since voters specifically, constitutionally banned what Doyle launched.

The only route left for defenders of redefining marriage is the sympathy play. One line, for instance, has it that Doyle’s law was all about letting gay couples visit each other in hospitals. Nonsense, of course: A medical power of attorney gives whomever you designate – offspring, friend or, yes, gay life-partner – not only the ability to visit you in the hospital but to make decisions on your behalf. It’s a normal part of making a will, which any couple of any sexual preference ought to have anyhow.

Doyle wasn’t aiming to let couples visit each other in hospitals. Who visits whom is a private matter, and there’s little evidence any Wisconsin hospital made it anything but. As with the drive for gay “marriage,” Doyle’s registry was all about public status – granting a special public recognition to a particular kind of unmarried couple so that everyone else in society would have to treat them in every important way as if they were married.

Voters already told the government not to make such demands on society. Doyle ignored them.

Walker, to his credit, is listening.

New on NewsReal – Top 10 Parts of the Constitution Twisted or Ignored by the Left

My latest NewsRealBlog post:

The United States Constitution is one of the most well thought-out works ever created by mere mortals. As the Federalist Papers make clear, America’s Founding Fathers carefully considered nearly every aspect of human nature, the demands of freedom, and the nature of government when drafting it, and created a system of government designed to effectively carry out its duties without imperiling liberty, and calibrated to properly balance society’s competing commitments to self-rule and objective morality, to liberty and security, and more. Under the Constitution, the United States became the freest, most prosperous, and most consequential nation in history.

But to the Left, this magnificent document is at best a relic of a bygone era which has outlived its usefulness; at worst the product of long-dead, bigoted elites. Philosophically, they have inherited President Woodrow Wilson’s view that the Constitution was based on a theory of government mankind has since evolved past:

The makers of our federal Constitution followed the scheme as they found it expounded in Montesquieu, followed it with genuine scientific enthusiasm. The admirable expositions of the Federalist read like thoughtful applications of Montesquieu to the political needs and circumstances of America. They are full of the theory of checks and balances. The President is balanced off against Congress, Congress against the President, and each against the courts. Our statesmen of the earlier generations quoted in no one so often as Montesquieu, and they quoted him always as a scientific standard in the field of politics. Politics is turned into mechanics under his touch. The theory of gravitation is supreme.

The trouble with the theory is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton. It is modified by its environment, necessitated by its tasks, shaped to its functions by the sheer pressure of life. No living thing can have its organs offset against each other as checks, and live. On the contrary, its life is dependent upon their quick cooperation, their ready response to the commands of instinct or intelligence, their amicable community of purpose. Government is not a body of blind forces; it is body of men, with highly differentiated functions, no doubt, in our modern day of specialization, but with a common task and purpose. Their cooperation is indispensable, their warfare fatal. There can be no successful government without leadership or without the intimate, almost instinctive, coordination of the organs of life and action. This is not theory, but fact, and displays its force as fact, whatever theories may be thrown across its track. Living political constitutions must be Darwinian in structure and in practice.

Fortunately, the definitions and prescriptions of our constitutional law, though conceived in the Newtonian spirit and upon the Newtonian principle, are sufficiently broad and elastic to allow for the play of life and circumstance.

Accordingly, the needs of their agenda dictate a variety of approaches to the Constitution, depending on the issue. When America needs to be reminded of its irredeemably-evil history, the Constitution is an abomination. When a certain passage seems useful out of context, it becomes an example of the Founders’ wisdom (and pay no attention to that history book behind the curtain). And when a passage seems to get in the way, it’s time to break out the historical relativism.

No more. This weekend, we’re highlighting ten of the most distorted or ignored passages in the Constitution, listed in the order in which they appear in the text. Let’s get started.

Read the rest on NewsRealBlog.

New on NewsReal – She Who Governs Best Governs Most?

My latest NewsRealBlog post:

Feminist identity-politics arguments for increasing the number of women in public office usually rest on the premise that females have unique insight or sensitivity regarding issues like abortion, pay inequality, and education, without which disproportionately-male government cannot be trusted make sound, tolerant policy. But at the Daily Beast, Tony Dokoupil floats a new, more pragmatic argument, that according to a new American Journal of Political Science study, women simply get more stuff done:

The research is the first to compare the performance of male and female politicians nationally, and it finds that female members of the House rout their male counterparts in both pulling pork and shaping policy. Between 1984 and 2004, women won their home districts an average of $49 million more per year than their male counterparts (a finding that held regardless of party, geography, committee position, tenure in office, or margin of victory). The spending jump was found within districts, too, when women moved into seats previously occupied by men, and the cash was for projects across the spectrum, not just “women’s issues.”

A similar performance gap showed up in policy: Women sponsored more bills (an average of three more per Congress), co-sponsored more bills (an average of 26 more per Congress), and attracted a greater number of co-sponsors than their colleagues who use the other restroom. These new laws driven by women were not only enacted—they were popular. In a pair of additional working papers, led by Ohio State political scientists Craig Volden and Alan Wiseman, researchers tracked every bill introduced between 1981 and 2009, and found that those sponsored by women survived deeper into the legislative process, garnered more press attention, and were more likely to be deemed “important” overall. All of which leads the authors of the AJPS paper, University of Chicago Public Policy Professor Christopher Berry and his student and Stanford doctoral candidate Sarah Anzia, to conclude that it’s the women themselves—specifically, their skills at “logrolling, agenda-setting, coalition building, and other deal-making activities”— that are responsible for the gender-performance divide.

After a century of American political thought all-but dominated by progressive assumptions about the nature and role of government, this is likely to strike many Americans as intuitively compelling. But conservatives should instantly recognize the problem here: success and effectiveness are measured by sheer number of new laws made and amount of money funneled back home, without regard for the merit or constitutionality of any of it. Dokoupil simply assumes as a given that “more” equals “better.”

Read the rest on NewsRealBlog.

Around the Web

Justice Antonin Scalia tells it like it is on the “right” to abortion.

Is the DEA worse than WikiLeaks? Crap like this is why I find it so difficult to take libertarians seriously.

The new Speaker of the House isn’t taking any bull from Harry Reid. Let’s hope things stay that way. (Hat tip: Eternity Matters)

Michelle Malkin has 10 simple rules for the GOP.

The PC police are going after Huck Finn. Where’s the anti-censorship crowd when you need it?

R. Lee Ermey disappoints his fans.

Not even good enough for government work: snow cleanup workers in the Big Apple trash a Jewish cemetery.

The feds find yet another crisis that demands their immediate attention: insufficiently-regulated garage sales.

Thoughts on Secession, Part 2

In Part 1, I responded to Robert Stacy McCain’s claim that secession is an important recourse against an overreaching federal government, and that states as meaningful entities basically cease to exist without it. Today we turn to the other part of McCain’s defense of secession.

Citing the Declaration of Independence’s language describing the newly-independent colonies as “Free and Independent States,” plural, McCain claims the Union was merely “a military alliance for mutual self-defense, since “[t]here could be no separate peace — the King and Parliament could not hope to enter into negotiations with Rhode Island or North Carolina, seeking a treaty that would break the alliance”; and observes that the Treaty of Paris, which ended the Revolutionary War, similarly recognizes the ex-colonies as “free sovereign and independent states.” He then recounts the debate over ratifying the Constitution:

This ratification was conducted in each state by a special convention, and the debate was quite intense. Patrick Henry, among others, was in the anti-Federalist faction, warning that the Constitution granted too much power to the national government. It was to allay these concerns that the Bill of Rights was adopted immediately after ratification. Among those amendments, the 10th gave especial protection to the states, limiting the government to those powers delegated by the Constitution, and reserving the balance to the several states.

Now, we must pay careful attention to a key point about the Constitution, namely Article 7:

“The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”

Which is to say that as many as four of the original states might have, by refusing to ratify the Constitution, exempted themselves from that government.

The Anti-Federalists’ fears about the Constitution giving the feds too much power are just as immaterial to the nature of the Union as revolution’s dependence on the fortunes of war was in Part 1. The concept of America as a single, indivisible nation is hardly incompatible or inconsistent with belief in, or concern for, separating and protecting state prerogatives against federal authority within that nation. And I’m not sure how the fact that the states could have chosen not to become part of the new government proves that they could have withdrawn after it was formed.

Did the Union really begin as merely a temporary alliance of ultimately independent entities? Lincoln didn’t think so:

[W]e find the proposition that in legal contemplation the Union is perpetual confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was “to form a more perfect Union.”

But if destruction of the Union by one or by a part only of the States be lawfully possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity.

And:

Our States have neither more, nor less power, than that reserved to them, in the Union, by the Constitution—no one of them ever having been a State out of the Union. The original ones passed into the Union even before they cast off their British colonial dependence; and the new ones each came into the Union directly from a condition of dependence, excepting Texas. And even Texas, in its temporary independence, was never designated a State. The new ones only took the designation of States, on coming into the Union, while that name was first adopted for the old ones, in, and by, the Declaration of Independence. Therein the “United Colonies’’ were declared to be “Free and Independent States’’; but, even then, the object plainly was not to declare their independence of one another, or of the Union; but directly the contrary, as their mutual pledge, and their mutual action, before, at the time, and afterwards, abundantly show. The express plighting of faith, by each and all of the original thirteen, in the Articles of Confederation, two years later, that the Union shall be perpetual, is most conclusive.

Having never been States, either in substance, or in name, outside of the Union, whence this magical omnipotence of “State rights,’’ asserting a claim of power to lawfully destroy the Union itself? Much is said about the “sovereignty’’ of the States; but the word, even, is not in the national Constitution; nor, as is believed, in any of the State constitutions. What is a “sovereignty,’’ in the political sense of the term? Would it be far wrong to define it “A political community, without a political superior’’? Tested by this, no one of our States, except Texas, ever was a sovereignty. And even Texas gave up the character on coming into the Union; by which act, she acknowledged the Constitution of the United States, and the laws and treaties of the United States made in pursuance of the Constitution, to be, for her, the supreme law of the land.

The States have their status IN the Union, and they have no other legal status. If they break from this, they can only do so against law, and by revolution. The Union, and not themselves separately, procured their independence, and their liberty. By conquest, or purchase, the Union gave each of them, whatever of independence, and liberty, it has. The Union is older than any of the States; and, in fact, it created them as States. Originally, some dependent colonies made the Union; and, in turn, the Union threw off their old dependence, for them, and made them States, such as they are. Not one of them ever had a State constitution, independent of the Union. Of course, it is not forgotten that all the new States framed their constitutions, before they entered the Union; nevertheless, dependent upon, and preparatory to, coming into the Union.

Makes sense to me, but something tells me most secession defenders won’t accept the sixteenth President as the last word on the subject. So let’s see what the Founding Fathers had to say about the nature of the American Union:

George Washington:

[A]s this is the point in your political fortress against which the batteries of internal and external enemies will be most constantly and actively (though often covertly and insidiously) directed, it is of infinite moment, that you should properly estimate the immense value of your national Union to your collective and individual happiness; that you should cherish a cordial, habitual, and immovable attachment to it; accustoming yourselves to think and speak of it as of the Palladium of your political safety and prosperity; watching for its preservation with jealous anxiety; discountenancing whatever may suggest even a suspicion, that it can in any event be abandoned; and indignantly frowning upon the first dawning of every attempt to alienate any portion of our country from the rest, or to enfeeble the sacred ties which now link together the various parts.

For this you have every inducement of sympathy and interest. Citizens, by birth or choice, of a common country, that country has a right to concentrate your affections. The name of american, which belongs to you, in your national capacity, must always exalt the just pride of Patriotism, more than any appellation derived from local discriminations. With slight shades of difference, you have the same religion, manners, habits, and political principles. You have in a common cause fought and triumphed together; the Independence and Liberty you possess are the work of joint counsels, and joint efforts, of common dangers, sufferings, and successes […]

With such powerful and obvious motives to Union, affecting all parts of our country, while experience shall not have demonstrated its impracticability, there will always be reason to distrust the patriotism of those, who in any quarter may endeavour to weaken its bands […]

To the efficacy and permanency of your Union, a Government for the whole is indispensable. No alliances, however strict, between the parts can be an adequate substitute; they must inevitably experience the infractions and interruptions, which all alliances in all times have experienced. Sensible of this momentous truth, you have improved upon your first essay, by the adoption of a Constitution of Government better calculated than your former for an intimate Union, and for the efficacious management of your common concerns. This Government, the offspring of our own choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribution of its powers, uniting security with energy, and containing within itself a provision for its own amendment, has a just claim to your confidence and your support. Respect for its authority, compliance with its laws, acquiescence in its measures, are duties enjoined by the fundamental maxims of true Liberty. The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. The very idea of the power and the right of the people to establish Government presupposes the duty of every individual to obey the established Government.

James Madison:

The essential difference between a free Government and Governments not free, is that the former is founded in compact, the parties to which are mutually and equally bound by it. Neither of them therefore can have a greater right to break off from the bargain, than the other or others have to hold them to it. And certainly there is nothing in the Virginia resolutions of — 98, adverse to this principle, which is that of common sense and common justice. The fallacy which draws a different conclusion from them lies in confounding a single party, with the parties to the Constitutional compact of the United States. The latter having made the compact may do what they will with it. The former as one only of the parties, owes fidelity to it, till released by consent, or absolved by an intolerable abuse of the power created. In the Virginia Resolutions and Report the plural number, States, is in every instance used where reference is made to the authority which presided over the Government. As I am now known to have drawn those documents, I may say as I do with a distinct recollection, that the distinction was intentional. It was in fact required by the course of reasoning employed on the occasion. The Kentucky resolutions being less guarded have been more easily perverted. The pretext for the liberty taken with those of Virginia is the word respective, prefixed to the “rights” &c to be secured within the States. Could the abuse of the expression have been foreseen or suspected, the form of it would doubtless have been varied. But what can be more consistent with common sense, than that all having the same rights &c. should unite in contending for the security of them to each.

It is remarkable how closely the nullifiers who make the name of Mr Jefferson the pedestal for their colossal heresy, shut their eyes and lips, whenever his authority is ever so clearly and emphatically against them. You have noticed what he says in his letters to Monroe & Carrington Pages 43 & 203, vol 2, with respect to the powers of the old Congress to coerce delinquent States, and his reasons for preferring for the purpose a naval to a military force, and moreover that it was not necessary to find a right to coerce in the Federal Articles, that being inherent in the nature of a compact. It is high time that the claim to secede at will should be put down by the public opinion, and I shall be glad to see the task commenced by one who understands the subject.

John Jay:

Providence has been pleased to give this one connected country to one united people-a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence.

This country and this people seem to have been made for each other, and it appears as if it was the design of Providence that an inheritance so proper and convenient for a band of brethren, united to each other by the strongest ties, should never be split into a number of unsocial, jealous, and alien sovereignties.

Similar sentiments have hitherto prevailed among all orders and denominations of men among us. To all general purposes we have uniformly been one people; each individual citizen everywhere enjoying the same national rights, privileges, and protection. As a nation we have made peace and war; as a nation we have vanquished our common enemies; as a nation we have formed alliances, and made treaties, and entered into various compacts and conventions with foreign states.

A strong sense of the value and blessings of union induced the people, at a very early period, to institute a federal government to preserve and perpetuate it.

Alexander Hamilton:

A man must be far gone in Utopian speculations who can seriously doubt that if these States should either be wholly disunited, or only united in partial confederacies, the subdivisions into which they might be thrown would have frequent and violent contests with each other. To presume a want of motives for such contests as an argument against their existence would be to forget that men are ambitious, vindictive, and rapacious. To look for a continuation of harmony between a number of independent unconnected sovereignties situated in the same neighborhood would be to disregard the uniform course of human events, and to set at defiance the accumulated experience of ages […]

An intelligent writer expresses himself on this subject to this effect: “NEIGHBOURING NATIONS. (says he) are naturally ENEMIES of each other, unless their common weakness forces them to league in a CONFEDERATE REPUBLIC, and their constitution prevents the differences that neighborhood occasions, extinguishing that secret jealousy which disposes all states to aggrandize themselves at the expense of their neighbors.” This passage, at the same time points out the EVIL and suggests the REMEDY.

Admittedly, Thomas Jefferson’s record here is mixed—he did condemn the danger and counsel against the wisdom of secession:

I can scarcely contemplate a more incalculable evil than the breaking of the union into two or more parts […] a separation of the Union, the most dreadful of all calamities […]

[W]ho can say what would be the evils of a scission, and when & where they would end? Better keep together as we are, hawl off from Europe as soon as we can, & from all attachments to any portions of it. And if we feel their power just sufficiently to hoop us together, it will be the happiest situation in which we can exist. If the game runs sometimes against us at home we must have patience till luck turns, & then we shall have an opportunity of winning back the principles we have lost, for this is a game where principles are the stake.

But he also spoke more sympathetically of secession elsewhere:

If any State in the Union will declare that it prefers separation with the first alternative, to a continuance in union without it, I have no hesitation in saying “let us separate.” I would rather the States should withdraw which are for unlimited commerce and war, and confederate with those alone which are for peace and agriculture […]

Whether we remain in one confederacy, or form into Atlantic and Mississippi confederacies, I believe not very important to the happiness of either part.

Lastly, it’s worth noting that the Constitution makes “the laws of the United States […] the supreme law of the land,” with not only federal, but also state, lawmakers and judges bound to support the Constitution, and as I’ve pointed out before, the Constitution places quite a few restrictions on the states, making them far from “sovereign” or “independent.”

Considering the failings of secessionist rationale, the judgment of the Father of Our Country and the authors of the Federalist, and the implications of the Constitution itself, secession ends up looking a lot less like a valuable principle rooted in the American Founding, and more like a intellectual false lead that conservatives would do well to leave in the past, alongside the bloody conflict it spawned and the peculiar institution it was deployed to support.