In a recent article (“Liberty and Union, Now and Forever,” July 2002 Liberty), libertarian law student Tim Sandefur argues that libertarians should take the Lincoln-Union side of the War Between the States, unlike anti-Lincoln libertarians such as Murray Rothbard. There are several problems with Sandefur’s reasoning, a couple of which I will highlight here.
First, Sandefur tries to argue that it was not “States” that were parties to the Constitution, but rather, the whole people of America. Therefore, as the Constitution is not a “treaty” between separate States, none of the States can “withdraw” from the treaty. States cannot “break the constitutional compact,” because they are not parties to it; “the people” as a whole are the parties to it. One problem with this argument is Article VII to the US Constitution. It provides: “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the same” (emphasis added).
As Art. VII makes clear, the Constitution was established “between” the first nine States to ratify, upon New Hampshire’s ratification (it was the ninth). This is the classic language employed in treaties, which provide that the treaty becomes effective, among the states ratifying, when a certain threshold number of states have ratified it. Such treaties are clearly among and between the member states and bind only those who voluntarily adhere to it. Likewise, the American States were the original parties to the Constitutional compact. This is also made clear from the Federalist papers and the ratification documents, which say over and over again that the States were the ones ratifying, and joining, the Constitution and the new Union; not the people as a whole. (Thanks to Tom DiLorenzo for the last point and link to the ratification documents.)
Rhode Island was the last of the thirteen American States to ratify. It did not have to ratify. By the time it did, the new Constitution was already in force, and the United States consisted of twelve States. However, by Sandefur’s reasoning, Rhode Island could have been forced into the new Union, just as the Southern States could be forced not to secede. But this conclusion is contrary to international law and the very language of the Constitution. In actuality, if Rhode Island had ultimately decided not to ratify, but the other twelve had, then there would have been a Constitution by and between twelve United States, with Rhode Island being left out of the compact. It would have remained a sovereign state, a neighbor to the 12-member USA. As for secession, just as Rhode Island did not have to join this new union, but did—Rhode Island could also withdraw.
Second, Sandefur argues that the Constitution guarantees to every State in the union a republican form of government (Art. IV, Sec. 4). Yet, “such a guarantee would be meaningless were a State able to secede from the union.” After all, the seceding state might set up a non-republican form of government. This argument is weak, because the Constitution merely guarantees to every State in the union a republican form of government. But if a State secedes, it is no longer, of course, in the Union. Just as the Constitution does not authorize the federal government to “guarantee” a republican form of government in, say, Liechtenstein or the Holy See, so it does not authorize the feds to guarantee this in a former member of the Union. (And anyway, it is not clear what “guarantee” means here, and there is no power granted to the feds to enforce this guarantee.)
Third, and worst of all in my view, Sandefur tries to show that there was no “right to secede” built into the original Constitution; there was no explicitly recognized “permission” to secede. Sandefur here appears to miss the entire concept of enumerated and limited powers, i.e., the idea that the federal government has power to do only that which is authorized by the Constitution (see ninth and tenth amendments). It does not matter whether the Constitution explicitly provides for the right to secede. What matters is whether the Constitution empowers the federal government to go to war against a seceding state. This power is not granted. (Just take a look.) Therefore, the right to secede is implicit in the very structure of the Constitution.
Likewise, it does not matter if a given individual right (to free speech, to use or sell drugs, to own firearms) is specified explicitly in the Constitution, so long as Congress is not given the power to regulate in this area. Consider: The Federalists originally claimed no Bill of Rights was needed, because the new federal government was simply not empowered to violate natural rights. But to address the concerns of the Antifederalists, the Bill of Rights was added (in 1791, two years after the Constitution was adopted in 1789). The ninth and tenth amendments were added to make it clear that the listing of these rights did not mean these were the only ones that existed, or to imply that power was granted to the feds to invade other rights not listed.
Consider the two-year period from 1789 to 1791, when there was a Constitution but no Bill of Rights yet. During this time, a federal law banning handguns, or censoring speech, or establishing a state religion, would have been unconstitutional because ultra vires—beyond the powers granted to it. This did not change after the Bill of Rights was added. This is why, for example, the constant debate over whether the second amendment “really” protects an individual right to own guns is beside the point. Let’s assume it does not, or that the second amendment did not exist. Still, the feds can’t regulate firearms (just as they could not have from 1789 to 1791), because the Constitution does not authorize such federal laws. For someone to say a federal law is valid unless one can point to a contrary right in the Constitution, shows a lack of comprehension that the federal government is one of enumerated and limited powers. It is the federal government that acts by permission, not the populace.
The case of secession is similar. The Constitution nowhere authorizes or empowers any branch of the federal government to prevent a state from seceding. We do not need to find “permission” for States to secede; rather, the federal government has to find “permission” (authorization) in the Constitution, to stop secession. Since there is no such authorization, the Union’s war against ex-member States was unconstitutional.
