New Prager University Video: Separation of Church and State

The latest from Prager University:

“The Separation of Church and State.” Probably no phrase has had more impact on American history in the last fifty years than this one. Where did it come from? Who coined it? And, what does it mean? Distinguished law professor, John Eastman, has some surprising answers.

New on Live Action – Rethinking the Intersection of Church, State, and the Right to Life

My latest Live Action post:
When pro-aborts can’t win the argument with biological shell games and character assassination, they usually resort to disqualifying pro-life opinions from consideration by labeling them violations of America’s separation of church and state. So it’s worth spending some time on a broader look at the way abortion politics intertwine with religion.
Contrary to the insistence of abortion defenders, the case against abortion is not exclusively theological. It has two core factors: the empirical observation that individual human life begins at fertilization, and the moral/philosophical proposition that all human beings have an equal claim to live.
Clearly, the former point has nothing to do with religion. Admitting that zygotes, embryos, and fetuses are live human beings is simple biology. If protecting the right to life after birth isn’t “imposing religion,” then neither is concluding that such shared humanity entitles the pre-born to be included in that same protection. Indeed, pro-lifers are just advocating for a broader, more consistent application of the general right-to-life principle the rest of society already accepts, albeit selectively.
Read the rest at Live Action.

So What’s This About Muskets and the Commerce Clause?

In their desperation to make ObamaCare’s individual mandate not seem blatantly illegal, liberals have taken to citing a 1792 law requiring Americans to purchase muskets as proof that they’re not stretching the Commerce Clause beyond the Founders’ intent. Too bad for them that Randy Barnett at Volokh nuked that argument over a month ago:
5. At the hearing, Professor Dellinger mentioned that Congress had once passed a law requiring individual male citizens to provide themselves with muskets, gear and uniforms of a certain specification. I believe Professor Dellinger was referring to the Militia Act of 1792, which required all able-bodied male citizens, 18 years of age or older, to be enrolled in a militia and provide themselves with certain supplies for that service. 
a. Do you believe Congress most likely relied on its Commerce Clause powers in passing that statute?
Congress was relying on its Article I, section 8 power “To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States . . . ” The militia power, and the duty of a citizen to serve, pre-existed the formation of national government.
b. Do you believe the Militia Act of 1792 would have been a permissible exercise of Congress’ authority if it were based solely on Congress’ Commerce Clause powers?
It would not.
c. In your testimony, you alluded to jury duty, selective service registration and several other actions the federal government requires of each individual citizen. You described these as traditionally-recognized requirements that were necessary for the continued function of the government itself. In 1792, the United States did not have a permanent standing army. Do you think service in the militia was among those traditionally-recognized requirements necessary for the continued function of government? 
Without question, it was considered a fundamental duty of citizenship. Congress is now seeking to add an new and unprecedented duty of citizenship to those which have traditionally been recognized: the duty to engage in economic activity when Congress deems it convenient to its regulation of interstate commerce. And the rationales offered to date for such a duty would extend as well to the performance of any action, whether economic or not, when Congress deems it convenient to the exercise of its power over interstate commerce. The recognition of so sweeping a duty would fundamentally alter the relationship of American citizens to the government of the United States.

A Less Perfect Union: How Will Conservatives Restore States’ Rights?

Note: the following article was originally written in early June for another venue, but I’ve reprinted it here because I think its point is still relevant. It is also cross-posted at RedState.

Thanks largely to the Tea Party movement, the United States is thinking harder about individual liberty and states’ rights than she has in years. But despite identifying the problem, conservatives aren’t any closer to enacting a viable long-term solution for taming our federal leviathan.

Several efforts show promise. Many states have challenged the constitutionality of ObamaCare’s individual mandate to purchase health insurance, guaranteeing an eventual ruling from the Supreme Court. Though worth doing, that’s far too risky a basket to put all our eggs in, since it relies on a majority of the justices to rule based on the text of the Constitution rather than their personal ideologies.

In his popular book Men in Black, constitutional scholar and talk radio host Dr. Mark Levin suggests that Congress should restrain such activist judges via its constitutional authority to place limits on the courts’ jurisdiction and to impeach especially odious judges, and advocates constitutional amendments to give judges term limits and give Congress a supermajority veto over Supreme Court decisions. All these proposals are worth exploring in further detail, but even if enacted, there would still be legislative statism to deal with.

In Minnesota’s 2010 gubernatorial race, unsuccessful Republican nominee Tom Emmer backed a state constitutional amendment forbidding federal laws from taking effect without approval by a two-thirds vote in the state legislature. This proposal’s practical failings are obvious—preemptively nullifying all federal laws until the high bar of supermajority support is met would drastically complicate the law’s execution, and there’s no reason to expect state lawmakers’ decisions will be significantly more pro-Constitution that Congress, instead of simply turning on whether a particular majority happens to agree with whoever controls Capitol Hill at any given time.

In his recent book Power Divided is Power Checked, talk radio host Jason Lewis floats a more radical solution—a 28th Amendment, which would expressly affirm each state’s right to secession: “any state whose inhabitants desire through legal means and in accordance with state law to leave this union of the several states shall not be forcibly refrained from doing so.”

Secession is one of the Right’s more heated inter-movement debates, often distinguishing Libertarian from Republican, Northerner from Southerner. This conservative believes secession-at-will is a dangerous doctrine which undermines the rule of law and forgets the nation’s founding principles. Washington, Hamilton, Jefferson, and Jay all considered the national Union an indispensible safeguard of liberty, and “Father of the Constitution” James Madison explicitly denied secession’s legitimacy, explaining that, as a mutually-binding legal compact, the Constitution cannot be broken by any single party.

Moreover, conservatives need to be honest about secession’s full implications—by breaking away from the country, a state wouldn’t merely be rejecting an unjust administration, but also rejecting our very Constitution as no longer worth defending within the system of government it establishes.

So what is the answer? Taking unconstitutional laws to court would certainly be worthwhile. So would Levin’s proposed remedies. But these aren’t magic bullets, and conservatives need to recognize that the problem is more complex than “good states versus evil feds.” Indeed, bad national politicians don’t just fall from the sky; they start out as bad state and local politicians.

Why do so many Americans accept statism? Because the rest of us have failed to be vigilant in our own backyards. For decades, we’ve let progressive presuppositions about government and society gradually infect our politics, education, and culture. To really change course, we must retake our institutions at the local level, particularly with renewed scrutiny of what our schools are—and aren’t—teaching. We can’t expect future generations to recognize betrayals of our founding principles if they don’t even recognize names like Locke or Publius.

We didn’t get here overnight, and we shouldn’t expect a constitutional rebirth overnight either. Every level of American government and society needs to be scrubbed clean. Meaningful, lasting reform is the work of generations, which will demand from each of us more patience, tenacity, and fortitude than ever before.

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.

Happy Birthday, Mr. President

Today would have been the late, great Ronald Reagan’s 100th birthday. Many rightfully remember him for his unwavering support of free markets, limited government, and those suffering under Soviet oppression, but here it seems fitting to highlight one aspect of Reagan’s philosophy of liberty that the Right may be in danger of forgetting. In 1983, Reagan wrote a stirring essay called “Abortion and the Conscience of the Nation” which demands to be read in full by all who call themselves conservatives. A key excerpt:

Regrettably, we live at a time when some persons do not value all human life. They want to pick and choose which individuals have value. Some have said that only those individuals with “consciousness of self” are human beings. One such writer has followed this deadly logic and concluded that “shocking as it may seem, a newly born infant is not a human being.”

A Nobel Prize winning scientist has suggested that if a handicapped child “were not declared fully human until three days after birth, then all parents could be allowed the choice.” In other words, “quality control” to see if newly born human beings are up to snuff.

Obviously, some influential people want to deny that every human life has intrinsic, sacred worth. They insist that a member of the human race must have certain qualities before they accord him or her status as a “human being.”

Events have borne out the editorial in a California medical journal which explained three years before Roe v. Wade that the social acceptance of abortion is a “defiance of the long-held Western ethic of intrinsic and equal value for every human life regardless of its stage, condition, or status.”

Every legislator, every doctor, and every citizen needs to recognize that the real issue is whether to affirm and protect the sanctity of all human life, or to embrace a social ethic where some human lives are valued and others are not. As a nation, we must choose between the sanctity of life ethic and the “quality of life” ethic.

I have no trouble identifying the answer our nation has always given to this basic question, and the answer that I hope and pray it will give in the future. American was founded by men and women who shared a vision of the value of each and every individual. They stated this vision clearly from the very start in the Declaration of Independence, using words that every schoolboy and schoolgirl can recite:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.

We fought a terrible war to guarantee that one category of mankind — black people in America — could not be denied the inalienable rights with which their Creator endowed them. The great champion of the sanctity of all human life in that day, Abraham Lincoln, gave us his assessment of the Declaration’s purpose. Speaking of the framers of that noble document, he said:

This was their majestic interpretation of the economy of the Universe. This was their lofty, and wise, and noble understanding of the justice of the Creator to His creatures. Yes, gentlemen, to all his creatures, to the whole great family of man. In their enlightened belief, nothing stamped with the divine image and likeness was sent into the world to be trodden on. . . They grasped not only the whole race of man then living, but they reached forward and seized upon the farthest posterity. They erected a beacon to guide their children and their children’s children, and the countless myriads who should inhabit the earth in other ages.

He warned also of the danger we would face if we closed our eyes to the value of life in any category of human beings:

I should like to know if taking this old Declaration of Independence, which declares that all men are equal upon principle and making exceptions to it where will it stop. If one man says it does not mean a Negro, why not another say it does not mean some other man?

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.”

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.

New on NewsReal – Bill Maher Rewrites and Ignores History to Pit the Founding Fathers Against the Tea Party

My latest NewsRealBlog post:

Left-wing satirist Bill Maher is taking his hatred of the Tea Party movement to the next level. Evidently epithets like crazy, stupid, and racist no longer satisfy him, and he’s decided it’s time to hit “teabaggers” where it really hurts: by mocking their reverence for America’s Founding Fathers, suggesting the Founders’ values aren’t their own:

“[T]he Founding Fathers would have hated your guts…and what’s more, you would have hated them. They were everything you despise. They studied science, read Plato, hung out in Paris, and thought the Bible was mostly bullshit.”

Maher got a crack in at the Founders as well, saying they had a moral code, but it didn’t come from the Bible…”except for the part about, ‘it’s cool to own slaves.’”


Here, Maher is repackaging the ridiculous straw man that conservatism is not only incompatible with reason and science, but that right-wingers actually pride themselves on disregarding the insights of modern intellectuals in favor of gut instinct and unchanging tradition. But this is a complete distortion of conservative arguments.

We have no problem with true intellectualism or reevaluating our positions in light of new evidence; what we object to is the arrogance of societal elites who look down upon the decision-making abilities of the average American, especially in decisions concerning the individual’s personal affairs. We object to “expertise” being taken as a license to make policy outside of the democratic process.

Read the rest on NewsRealBlog.

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.

Thoughts on Secession, Part 1

On Monday, Hillsdale College history professor Dr. Paul Rahe (disclosure: I’ve heard him speak several times, but am not one of his students) marked the 150th anniversary of South Carolina’s vote to secede from the union by penning an op-ed in which he argues against the legitimacy of secession:

The legitimacy of secession has been debated ever since. In my view, secession was unlawful. There is provision in the United States constitution for ratification and for the admission of new states into the Union. There is no provision for secession.

It is true, of course, that – in ratifying the Constitution – Virginia specified “that the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression.” But this unilateral assertion on Virginia’s part is not and could not be an assertion of a legal right under the Constitution – which, even if viewed as a contract, recognizes no such right. Rather, it is a reassertion of the natural rights that underpin the right to revolution asserted in the Declaration of Independence, and it applies to the people of the United States and not to the state of Virginia or even the people of the state of Virginia as such.

Robert Stacy McCain objects to Rahe’s analysis, seeing in it disastrous implications:

Of course, this theory effectively abolishes the states, rendering them nothing but administrative jurisdictions of the unitary and all-powerful national government — the negation of federalism […]

Did these states, by ratifying the Constitution, thereby permanently forfeit their independence?  Is there nothing the federal government could do — no act of the president or Congress, no decision of the Supreme Court — that would justify any state in saying, “OK, you’ve gone too far now”?

It would seem that Paul Rauh answers that question in the negative, that he denies that the states have retained any shred of their original independence, that no state has any just recourse if its citizens should feel that the federal government has overstepped its rightful bounds.

The states are therefore no longer states in any meaningful sense, and we no longer in fact have a federal system of government, but rather one vast unified empire of 300 million subjects, with whatever vestiges of the “states” remain being subject to obliteration so soon as it suits a majority in Congress (or the Supreme Court) to do so.

Ideas have consequences, as Richard Weaver once famously observed, and so it is with the idea of the indissoluble union. (Evidently, it’s like La Cosa Nostra — once you join, there’s no quitting.) What we now have is a national government without any effective limit to its power, except so far as regular elections may have any limiting effect. But if this also fails and the advocates of an all-powerful national government should obtain a permanent majority, what remedy can there be under Rahe’s theory?

First, the notion of states as “nothing but administrative jurisdictions of the unitary and all-powerful national government” simply has no basis in Rahe’s words. To deny secession’s legitimacy is hardly to deny that the federal government’s powers are strictly limited, or that the states have rights and responsibilities in which the feds must not meddle. (Rahe did, for what it’s worth, write a book on the subject.)

Second, there are obvious recourses to injurious federal actions: the regular elections McCain references, the constitutional amendment process, and prior to the 17th Amendment’s passage, the Senate also countered federal encroachment into the states. There’s also the judiciary, though admittedly that won’t be of much use to limited, constitutional government until we get serious about reining in judicial activism. (And all of the above is, of course, subject to the quality of those in office, but that’s unavoidable with any form of government.) I wouldn’t be so quick to discount the value of any of those means, and in the block quote at the top of McCain’s post, Rahe does give the states a “just recourse” when all else fails: the natural right of revolution. As the Declaration of Independence puts it:

[W]henever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness […] when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

The standard pro-secession objection here is that a) revolution is extra-legal, meaning the government from which a state is separating has no legal obligation to let the state go; and b) revolution is a right possessed by individuals, not states. McCain seems to think that the American Revolution’s “dependen[ce] on the fortunes of war” is sufficient to invalidate the right of revolution. But so what? In principle, whether something is easy has no bearing on whether it’s true, and in practice, the prospects of the South’s “right” to secession were every bit as “dependent on the fortunes of war” as the War for Independence.

Granted, I can see where the other side is coming from, in that secession could theoretically be easier than revolution, and thus might be a more potent threat to an overreaching federal government. But secession’s supporters are overlooking a very big downside, which Abraham Lincoln’s First Inaugural Address makes clear. First, there are the logical problems inherent to the concept:

Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination […] If the United States be not a government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade by less than all the parties who made it? One party to a contract may violate it—break it, so to speak—but does it not require all to lawfully rescind it?

More importantly for our current purposes:

If the minority will not acquiesce, the majority must, or the Government must cease. There is no other alternative, for continuing the Government is acquiescence on one side or the other. If a minority in such case will secede rather than acquiesce, they make a precedent which in turn will divide and ruin them, for a minority of their own will secede from them whenever a majority refuses to be controlled by such minority. For instance, why may not any portion of a new confederacy a year or two hence arbitrarily secede again, precisely as portions of the present Union now claim to secede from it? All who cherish disunion sentiments are now being educated to the exact temper of doing this.

Is there such perfect identity of interests among the States to compose a new union as to produce harmony only and prevent renewed secession?

Plainly the central idea of secession is the essence of anarchy. A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism. Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left […]

Why should there not be a patient confidence in the ultimate justice of the people? Is there any better or equal hope in the world? In our present differences, is either party without faith of being in the right? If the Almighty Ruler of Nations, with His eternal truth and justice, be on your side of the North, or on yours of the South, that truth and that justice will surely prevail by the judgment of this great tribunal of the American people.

By the frame of the Government under which we live this same people have wisely given their public servants but little power for mischief, and have with equal wisdom provided for the return of that little to their own hands at very short intervals. While the people retain their virtue and vigilance no Administration by any extreme of wickedness or folly can very seriously injure the Government in the short space of four years.

While voters and states might rightly despise any given government action, as long as the political process remains open to them, their only just recourse lies within that process. To do otherwise is, in effect, to proclaim that one may pick and choose which laws to follow and which to ignore, a reversion to minority rule by which the few can dictate virtually anything to the many.  Indeed, if a state can legally break away from the nation, then what’s to keep a city from breaking away from a state, or an individual from a city?

At the end of the day, good government is ultimately dependent upon enough of the people eventually coming to their senses to set things right. This remedy is always uncertain, and often slow and unsatisfying, so it’s understandable that people would seek out some extra insurance for when the will of the people lets them down. But while it’s not inconceivable that secession could function as that insurance in some cases, nor is it clear that secession would be any more viable than revolution, and the logic of secession could actually do much more harm than good, by undermining the respect for the rule of law which is essential to good government.

Ultimately, though, as McCain says:

The fundamental question is, “Who ratified the Constitution, and what sort of union was created by that ratification?” And the answers to those questions are not, nor can they be, a matter of mere opinion. There are historical facts to be considered, and which Rahe glosses over.

McCain glosses over some of those historical facts, too. Those facts will be the subject of Part 2.