Sandefur on secession
[Note: This post has been bumped by request.]
Timothy Sandefur slammed Ron Paul's comments from this morning on secession, where Dr. Paul said that colonies seceded from England:
The difference between secession and revolution is, of course, one which paleoconservatives like Paul insist on ignoring, but it is a crucial one. Secession is the notion that a state may unilaterally leave the American union, consistent with the Constitution of the United States. Obviously since the revolution occurred in 1776, eleven years before the Constitution, it can’t be called “secession.” And perhaps that’s why the word was not used by the founding fathers when they engaged in the revolution or even afterwards.Sandefur definitely presents a strong case for his argument and think he's right for the most part, especially as to how libertarians should view the Civil War.Secession is and always has been unconstitutional and illegal, for reasons discussed in my paper, How Libertarians Ought To Think About The U.S. Civil War. The people certainly do retain the right of revolution, but revolution, of course, can only be justified on the basis of self-defense. As the Declaration put it, only after a long train of abuses evince a design to reduce the people under absolute despotism may they throw off such government and implement new safeguards for their safety and happiness. That is the principle of a free society: that government exists to protect individual rights and has no value aside from that protection.
[...]
“New England wanted to secede,” he says, “No one challenged New England that it was unconstitutional in our early history.” That’s complete and utter bullshit. Paul is referring to the Hartford Convention of 1814-15, held in protest against the War of 1812. That convention was controversial because some delegates talked about secession, which was, indeed, widely held to be unconstitutional—and, indeed, that controversy helped ensure that in the end, the Convention did not call for secession.
Originally posted on April 21, 2009 @ 7:57pm.
Comments
I just gave a quick read to the Civil War piece and I don't think he could be more wrong. The manner in which he addresses the 10th Amendment is facile and shallow.
His entire argument is premised on the proposition that the Constitution is a union of the People of the United States. But it was ratified by the States - not by the citizens. The Consitutional Convention could have called for a plebisite - but it didn't.
As to the 10th Amendment analysis, Sandefur argues by implication that there is an prohibition against sucession which would prevent the right of sucession from being one of the rights reserved unto the States. Problem with his 'circumstantial analysis' is that Article I section 10 is a list of powers prohibited to the States. Since there is a section which expressly limits the States' powers, ordinary rules of legal construction would foreclose additional prohibitions by implication.
Furthermore, the Constitution provides for the additional of States, not more people. If this Constitution were a compact among people then wouldn't it follow that expansion of his application would be made to people not States?
Sandefur's paper looks nice, has footnotes and all that neat stuff - but is fatal