A Concurring Opinion For Secession, Part 2
by Timothy Baldwin
Anti-Secessionist Argument #1: To secede would cause damage to the other states given their “detrimental reliance” on the other states’ joining the union.
In Vieira’s first point, he refers to the secessionist’ position that the US Constitution is a “contract,” thereby giving the state a right to break the contract upon a breach. However, he qualifies this position to say, a contract is no contract where the parties to it can leave it at any time without cause. In other words, where there is no binding effect upon the parties to the agreement, then the agreement has no binding effect other than a “gentlemen’s agreement.” This renders the “agreement” to be something other than a contract and implicitly is some sort of legal absurdity.
From a natural law definition, Vieira describes what enlightenment and natural philosophers called an “imperfect obligation.” “An imperfect mutual obligation arises…when a person, while binding himself to furnish something to another, does not demand that this latter be put in his turn under obligation to him in the same way. This takes place principally in the case of gratuitous promises.” Samuel Pufendorf, Two Books on the Elements of Universal Jurisprudence, (Indianapolis, IN, Liberty Fund, 2009), 116.
To avoid the conclusion that the US Constitution is simply a non-binding agreement upon the States, Vieira points us to “what lawyers call” detrimental reliance, offering a sort of alternative to the “contract/compact” theory of secessionists. This detrimental reliance theory is a principle of contract and natural law, as expounded by natural law jurists, and is in fact a legal cause of action used today. This principle says, where I have made a promise and as a result of that promise, you have changed your position, such that if I break my promise, you will be harmed, then an implied contract has been formed and I will be estopped from breaking my promise or alternatively will be held liable for the damages I cause you as a result of breaking my promise. Put differently, the ratifying states of the union have relied upon the other states’ ratifying the constitution and that as such, those states have formed an implied contract to remain in that same union, except by the terms of the contract, as if there is one.
The detrimental reliance theory, however, is not at all in order as it relates to the independent actions of independent states. Is the United States perpetually bound by a treaty to a foreign country forever where that foreign country has materially breached the agreement? No one in their right mind would even suggest it. Not one state expressly conditioned their ratification of the constitution upon the guarantee that all of the ratifying states (present and future) will be bound to that union, even though all of the states knew of its possibility, given the fact that they just seceded from Great Britain.
They joined the union based upon the moral force of commonality, as James Madison confirms in this maxim:
“The more intimate the nature of such a union may be, the greater interest have the members in the political institutions of each other…Governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort, than those of a kindred nature.” FP 43 (emphasis added).
What happens to the union where the principles and forms are now less adapted to a federal coalition? What happens to self-government when those elements are gone?
And as a side, how can it be that the colonies had a right to secede from Great Britain which was a bond connected by a monarchy with no form of voluntary union present, but there can be no right to secede in a federal compact formed voluntarily by sovereign states? If the answer is, well, ALL of the colonies seceded, this does not answer the question, because each colony had the individual decision to make for itself whether or not it would secede, and they maintained that independence from each other as evidence by their Declaration to the world of being free and independent states, having all the powers that independent nations have. If there is anything that is clear from the Declaration of Independence period, it is that the people wanted to maintain a federal form of government, not a national one, just as Justice Joseph Story reflects: “The Declaration of Independence…was not the act of the whole American people.” Joseph Story, Nature of the Constitution – Whether A Compact, Book 3, Chapter 3, Sec. 330.
However, even it were presumed that the detrimental reliance theory is applicable here, the natural and contract law principles of course work both ways: where a state has entered the union with the promise or assurance that the fundamental laws, principles and purposes of the constitution be followed, then the harmed state has a right to seek remedy for that breach and to mitigate its damages as far as possible for the preservation of that state where those guarantees are not followed.
State Ratifications Reveal “No Detriment”
Using the detrimental reliance argument to oppose secession ignores what the states believed to be true when entering the union; that is, they believed they had a right to withdraw themselves from the union at any time based upon the principles of a federal compact formation. Consider the state of New York’s ratification documents:
“We, the delegates of the people of the State of New York…do declare and make known—[1] That all power is originally vested in, and consequently derived from the people, and that Government is instituted by them from their common interest, protection, and security. [2] That enjoyment of life, liberty and the pursuit of happiness, are essential rights, which every Government ought to respect and preserve. [3] That the powers of Government may be re-assumed by the people, whensoever it shall become necessary to their happiness; that every power, jurisdiction, and right, which is not be the said Constitution clearly delegated to the Congress of the United States, or to the departments of the Government thereof, remains to the people of the several States, or to their respective Governments, to whom they may have granted the same.” Stephens, A Constitutional View of the Late War Between the States, 270-271 (emphasis added).
Here, New York put the world on notice that the people and their agents (state government) retain the right to withdraw themselves from political associations where such unions become destructive to the ends of government: “enjoyment of life, liberty and the pursuit of happiness.” Why? Because this conforms to the principles of state sovereignty, self-government and the consent of the governed. It cannot be argued that a state breaches a contract by removing itself from the relationship when the states understood and consented to this “right to withdraw” term of the contract before hand.
Are we, their posterity, to ignore the legally binding effect of their declarative statements regarding ratification? And if we can so ignore, then why cannot we likewise ignore the supposition that the states cannot secede because our “forefathers did not want us to” or because the federal government does not want us to today? What is good for the goose is good for the gander. You cannot attempt to justify a position based upon the constitution when the documents ratifying the constitution show the opposite political intent and effect. After all, the constitution was not created and does not currently exist in a vacuum. One cannot look at the words today and apply his own subjective meaning to them. This contradicts every rule of sound construction. The constitution has certain and fixed meanings based upon the principles, philosophies, circumstances and understandings of 1787, and those meanings can most certainly be determined by the ratifying documents of the states.
If detrimental reliance is the pad-lock holding the states together, then it most certainly is the key to unlock the states’ part in the union where the system of the union itself causes detriment to the states, such that a state’s very survival and freedom’s perpetuation is best accomplished through secession from the existing union. As soon as this theory is admitted, contract laws necessarily appear between the states and with the created federal government (the agent of the people of the states); and one must necessarily conclude that each party has a right to enforce the contract as it relates to the breach thereof, especially when the assenting document expressly declares that they have a right to withdraw from the union.
This is why it is so important for anti-secessionists to conclude that a contract/compact does not exist between the states because to do so admits the power of the parties to determine the breach of the terms and to pursue remedies consequentially. To that end, Vieira does not admit that an implied contract exists, nor does he admit that an expressed contract exists. Why is it so important that the union not be based upon a compact? Because the rules and maxims relative to a union being formed by a federal compact necessarily confirm the states’ right to remove themselves from that union.
The next articles will address, Anti-Secessionist Argument #2: The US Constitution Is Not a Federal Compact of States/Bodies-Politic, but Is an Independent Government Formed by One People/Body-Politic, Without Regard to State Powers.
February 7th, 2010 at 10:54 pm
At first, I found the logic in Dr. Vieira’s essay to be quite difficult to follow. I almost gave up, thinking to myself, if I can’t understand it, he’s wrong. I had to print it out and read it several times. And now, I have to say I agree with his arguments. Succinctly, he is saying the secession is considerably more complicated than getting really upset with the federal government and quitting the union. Furthermore, he is saying that all avenues of regress have not even come close to being exhausted. Secession is a last resort measure.
I do think there a few weaknesses in your discussion:
1. You wrote, “Vieira’s first point, he refers to the secessionist’ position that the US Constitution is a “contract,” thereby giving the state a right to break the contract upon a breach.”
Actually, Dr. Vieira said that the Constitution is “… a political charter with different and more force than a typical ‘contract’ “. That is it is more complex and requires careful thought since it does not fall under the usual rules guiding the performance of contracts.
2. I am not a legal scholar (not even close), but your use of “detrimental reliance” versus Vieira’s “reliance interest” seems like a straw man argument. At any rate, your “detrimental reliance” argument breaks down when you extend it to apply to the “contract” between the federal government, the States, and “We the People”. As previous mentioned, we are not talking about a simple contract, but a specially defined compact.
3. Yes the “colonies had a right to secede from Great Britain which was a bond connected by a monarchy” but that was a completely different arrangement, not even qualifying as a contract.
4. You have a very valid point with New York and any other colony who used a similar conditional ratification clause. They may have a claim for secession based on these clauses. However, this does not necessarily extend then to all the other states. And what about states that joined the “union” later?
5. You wrote, “If detrimental reliance is the pad-lock holding the states together, then it most certainly is the key to unlock the states’ part in the union where the system of the union itself causes detriment to the states, such that a state’s very survival and freedom’s perpetuation is best accomplished through secession from the existing union.”
If this were a simple two party contract, I’d agree. But again this ignores the more complicated relationship between the states and also “We the People”.
Thank you for your reply to Dr. Vieira. I think these discussions and debates about secession send the message that we are serious about governmental tyranny and usurpation. States must draw the line in the sand, but they must also physically and actively back up up their stance or they will not be taken seriously by Washington D.C. No matter what position one takes, Dr. Vieira is correct in pointing out that States have to prepare and act now. Unless they are have their ducks in a row with the “power of the purse” and the “power of the sword” nothing of merit can be accomplished. And if they do, I don’t think secession will ever become necessary.
February 8th, 2010 at 12:22 am
Northbridge,
Thank you for reading my articles thus released on secession. I know you have questions, and have a certain impression right now, but quite honestly, the real issue has yet to be addressed in my articles. The first one was a prelude. The second addressed the “detrimental reliance” theory by Vieira, which is quite honestly, very incorrect and off-base, as I will address in my other articles.
The fact is, the detrimental reliance subject has never even been used by those unionist spokesman in the 1800s who debated these issues, arguing that the states did not have the right to secede from the union. The fact that Vieira used that argument against secession was such a stretch that rebutting that position created a red-herring on the matter for the readers. I was afraid it would lead astray some readers, but I had to address it b/c it was one of Vieira’s main arguments against secession. My upcoming articles will clear this up.
The fact that you bring up, “if this were a simple two party contract, I’d agree”, shows that even addressing the matter from a “detrimental reliance” theory does not address the actual issue because, as you say yourself, “secession is a last resort;” but the issue is not, when does secession become necessary. The issue is, do the states have the right at all. Either they do or they do not. This answer requires a knowledge of the TRUE issue, which is not wrapped up in a detrimental reliance theory or the amendment clause or the supremacy clause in the US Constitution.
Instead, as will be seen in my forthcoming articles, the issue has been has everything to do with whether the US Constitution is a federal compact assented to by the states. If so, secession was most certainly retained. If not, then we do not have a Federal Republic, but rather a consolidated nation.
More to come…
February 8th, 2010 at 11:10 am
People can certainly argue legal interpretations that lean one way or the other. And to a certain degree, debate is largely academic. But the short and long of it is, to ultimately do the right thing. If that requires separation from evil, I’m all for it. No arguments. Looking forward to your next article.
February 8th, 2010 at 10:45 pm
I liked your New York quotations. But not all states made these claims. How to you get to the same conclusion with states like Montana? Perhaps you can address this in future articles if you think its relevant.
I looked at the organic Act of Congress passed May 26, 1864 which formed the territory of Montana and the Congress said that it could further divide the territory and change the boundaries of the Montana territory as Congress so decided. This does not sound like the exercise of a sovereign Montana. Then Congress said Montana cannot impair any treaty with the Indians and in fact denied to Montana any treaty power with the Indians. Congress prohibited slavery in Montana. This too does not sound like Montana had much sovereignty. Moreover, the Montana governor, secretary, chief justice, and associate justices, attorney, and marshal were appointed by the President of the United States, by and with the advice and consent of the Senate. How can a sovereign states be dependent on the President of another government for his office? These officials had to take an oath to uphold the United States Constitution. Is this the act of a sovereign, to pledge fidelity to a foreign government’s laws?
Then I looked at the enabling Act–the Act passed by the United States Congress that permitted the people of the Montana Territory to be admitted to the Union upon the adoption and ratification of a new state constitution. The Enabling Act, 25 Stat. 676, was passed on February 22, 1889. Here is something worthy of note–Congress stated that the people of the territory should have an election to choose delegates to attend a constitutional convention. At the convention the delegates elected by the people shall declare “on behalf of the people of said proposed States, that they adopt the Constitution of the United States; where upon the said conventions shall be, and are hereby, authorized to form constitutions and States governments for said States; respectively.”
It was not the legislature of Montana that approved adoption of the national Constitution. I ask, how then can the act of the state legislature of Montana unmake that adoption? No the adoption was made by the people of Montana acting through their elected delegates in a convention specifically called for that purpose (not the legislature). As a matter of fact, the convention itself was authorized to form a State government “for the proposed state of Montana.” Yes the proposed State–a state formed by the people in a convention of delegates called and elected by the people for that purpose.
Is this the exercise of a sovereign state power . . . to have delegates in convention, bypassing the territorial legislature and governor and adopting the US constitution and then the delegates forming a state government and state constitution?
Moreover, the state constitution had to be republican in form, make no distinction in civil or political rights on account of race or color; not be repugnant to the Constitution of the United States or the principles of the Declaration of Independence. These are all limits on state power and state sovereignty. Not the complete and total elimination of same. But limitations none the less.
Even then Montana was no state. Not until the people by a general election accepted or rejected the proposed state constitution. President Harrison finally recognized all this was accomplished and Montana became a state admitted to the union. The document in which the President acknowledged that the citizens of Montana met all of the requirements set in the Enabling Act and that completed admission of the State of Montana into the Union is the Proclamation, 26 Stat. 1551, Proc. No. 7, and was signed on November 8, 1889.
The Constitution of Montana’s preamble stated that Montana is a sovereign state. This is to be understood in light of all that has gone before. Your readers must understand that or else they will be simply left with parroting the preambles and have no understanding of what it cost the state to get there or the real and actual limits on its sovereignty.
Look at all the limitations on this sovereign state. Got its start by an Act of Congress, bound to the Constitution, republican in form, no discrimination, no slavery, no treaty power, bound to the principles of the Declaration, bound by oath to the US constitution, all approved by the people, not the legislature. So Montana is not this great sovereign entity. Do you still maintain all the states are sovereign and can get out of the union at will, even Montana?
February 12th, 2010 at 8:03 pm
Look at all the limitations on this sovereign state. Got its start by an Act of Congress, bound to the Constitution, republican in form, no discrimination, no slavery, no treaty power, bound to the principles of the Declaration, bound by oath to the US constitution, all approved by the people, not the legislature. So Montana is not this great sovereign entity. Do you still maintain all the states are sovereign and can get out of the union at will, even Montana?
And of course all the above actions are unconstitutional. In order to maintain equality of status in the Union, EVERY state had to be admitted on EXACTLY the same grounds as th original 13. Additionally, no where in the Constitution is Congress empowered to “form States” and place requirements on those state for membership in the Union.
The power “to make all rules and regulations for the territory” ceases when the territory is “disposed of”.
So one would have to say that Montana and all the other states are not states as per standard of the Union set up on the original ratification.
Power corrupts and it began with the first congress.
Does yo mama know you be on da net?
February 23rd, 2010 at 12:06 am
I see, so only the original 13 and perhaps Vermont, KY and TN are the only true states?
As to Mom, she hosts my website. She can set one up for you too when you decide to come out from hiding underground. I bet you live in Louisiana and learned your history in the government schools. Am I close?