(Centennial Fellow) The current controversy around Obamacare echoes the debate over ratification of the Constitution in 1787-88. Contention then centered on how the government would obtain and maintain the sufficient support of the people, while at the same time protecting the people’s liberties. Both the Federalists and the Anti-Federalists agreed that this indeed was the proper role of government. Their disagreement lay in how best to constitute a government to achieve these desired ends. For government to be legitimate, it must maintain a voluntary attachment and obedience to the laws.
For the Federalists, a new theory of government – the “extended compound republic” – was believed to be the solution to these challenges. By introducing a diversity of opinions from a large geographical expanse (made possible by representative government), the Federalists believed that laws passed by elected officials would only be passed with the widespread support of a clear majority of the people. At the same time, laws harmful to the rights of the people would be very difficult to pass through the layers of checks and balances established in the compound republic. Finally, the Federalists argued that a system of “dual sovereignties” was created by the Constitution of 1787, with distinct powers held by the states and other distinct powers given to the national government. This division of power provided the necessary balance and security for the individual citizen’s liberties.
The Anti-Federalists were highly skeptical that this new science of government crafted by Madison and his fellow convention delegates would satisfy either of these significant concerns. Simply having elected officials who were to represent the interests of the people in the national government was seen as no security at all to the opponents of ratification. In fact, Robert Yates, a New York judge writing under the pseudonym Brutus, argued that the people “will have no confidence in their legislature, suspect them of ambitious views, be jealous of every measure they adopt, and will not support the laws they pass.” Brutus suggests that rather than having the voluntary attachment to the laws – because they reflect a majority will of the people – the people will instead be highly skeptical of them.
When the people are skeptical of their laws, they will have neither a voluntary attachment nor a voluntary obedience to them, which leads to the second great concern of the Anti-Federalists: when the people don’t voluntarily support the nation’s laws, they will necessarily be coerced or forced to obey them. Richard Henry Lee, a leading founder, noted that when public opinion is not behind our laws, “force then becomes necessary to secure the purposes of civil government.”
Finally, the Anti-Federalists did not accept the argument that “dual sovereignties” could be long maintained. Inevitably, they would tend in one direction or the other, and the Anti-Federalists were certain that this tendency would ultimately move away from the states in favor of the national government.
The historic debate on protecting liberty and ensuring popular legislation was not resolved in 1787 -- indeed it holds great relevance for us today. Health care reform is a present-day example reflecting the very real concerns of both the Federalists and Anti-Federalists of whether laws would be passed with widespread support – ensuring voluntary attachment and obedience to them – and whether or not our liberty is secure. The most recent Rasmussen survey finds that 54% of respondents now favor repeal of the Health Care Reform. In the analysis of the poll they find that: ** Fifty-nine percent (59%) of voters think the plan will increase the deficit despite assurances from the plan’s supporters that just the opposite is the case.
** Twenty-two percent (22%) say the quality of health care in America will get better under the new plan, but 52% think it will get worse.
** Fifty-six percent (56%) believe the plan will cause the cost of health care to go up.
It is quite clear that this law fails the test of widespread support. And when individual citizens are forced to purchase health insurance at the risk of being fined, there is indeed a new threat on our liberty. Brutus and Lee’s worst fears appear to have been proven true: law in this instance does not reflect the will of the people and force will be necessary in order to secure obedience.
(Centennial Fellow) After imposing more than $1 billion a year in tax and fee increases - without once seeking voter approval - liberal Democrats in the Colorado legislature now want voters to permit them to raise taxes without limitation and without ever asking voters again.
Can you say, "Oblivious to irony"?
Colorado's constitutional stipulates that taxes cannot be increased without asking the voters. But voters have an annoying habit of saying "no" to big-spending politicians who think their priorities are more important than those of the voters, so in just the past four years Democrats have:
· Increased vehicle licensing taxes by $40-$50 per vehicle per year, plus substantial penalties, and called them "fees" just so they didn't need to ask for voters' permission.
· Increased assorted taxes on Colorado families and businesses by $50 million last year and another $130 million this year, again without ever seeking voters' permission.
· Increased your property taxes by some $150 million this year alone, again without voter approval, calling that scheme the "Colorado Children's Amendment."
Apparently, liberals are betting that voters have a very short memory because, as you may recall, the 2007 Children's Amendment was touted as a "commitment to pre-school programs, full-day kindergarten and local school districts" and as a plan to prevent the State Education Fund from becoming insolvent, according to a press release from Gov. Bill Ritter.
Now, we're told, schools are on the brink of financial catastrophe and, oh by the way, the State Education Fund is broke anyway.
House Concurrent Resolution 1002 asks voters to exempt K-12 education and higher education - which account for 60 percent of state general fund spending - from all constitutional spending limits and from the requirement that tax increases must be approved by the voters.
Because money is fungible, it would eviscerate the last meaningful taxpayer protection in the state constitution.
To be sure, local school districts have had a couple tough budget years. But so has the State of Colorado and so have taxpaying families and businesses.
Despite numerous attempts to shield education from economic reality, the legislature's bag of tricks finally ran out this year along with taxpayers' money. Since voters adopted Amendment 23 ten years ago, in yet another plan to give schools all the money they need, schools have been exempted from the cuts that confronted the rest of the state budget.
Ten years ago, the state spent an average of $5,168 per pupil. In the recently-approved 2010-11 budget, the average is $7,279 - a cumulative increase of 40 percent.
Last year, even after the legislature rescinded $148 per student, schools still received an average increase of more than $200 per student over the previous year.
Despite two recessions in the last decade, per pupil spending has increased each and every year. That doesn't mean that schools haven't experienced increasing costs for health care, for energy and for funding retirement pensions or that the legislature hasn't cut back in other areas. However, these are conditions that businesses and families must manage as well - and they must do so without the power to tax.
Because it seeks to amend the state constitution, HCR 1002 needs a two-thirds majority in both the Colorado House and Senate. It will almost certainly fall short of that goal. However, proponents could put their proposal on the ballot via petition.
Selling it to voters will be an uphill climb, as proponents of Amendment 59 learned in 2008. That proposal, which sought to repeal parts of TABOR and Amendment 23, was far more even-handed, backed by more than $2 million and opposed by less than $50,000. Nonetheless, voters rejected it 54 to 45 percent.
The prospect that voters, whose trust of government is near an alltime low, would reward the tax hikers with even more power to tax is a longshot.
That liberal Democrats are so tone deaf that they are forging ahead anyway demonstrates their abject isolation from the financial hardships facing ordinary Coloradans.
('76 Contributor) The many ways in which Supreme Court Justice John Paul Stevens has weakened our Constitution were outlined in David Harsanyi's recent Denver Post column. However, Harsanyi left out the "penumbra," which not only softened the Constitution, but also killed many people, which is far worse than any examples the column detailed.
In the fateful Roe v. Wade decision of 1973, Justice Stevens found a "penumbra" or a shadow in the 14th Amendment and constructed an "abortion right" that has killed 50,000,000 babies in the womb. President Obama said that Justice Steven "applied the Constitution and the laws of the land with fidelity and restraint."
If that is restraint, how many more babies will be killed with the next appointee?
(CCU Student) For the past few years, Americans have heard countless mentions of change and changing America. In 2008, the people voted for a form of change that they thought they wanted. A break from the “old” way of doing things and a transition into a new day of prosperity and wealth for all. And after not even two years, we seem to desire yet another change. The eyes of the voters have been opened to how the Obama administration and other progressives operate within a shroud of secrecy. We were promised transparency and bipartisan efforts but instead have seen intimidation, back room deals, midnight meetings, and political maneuvering. And that was just to get all of the Democrats to fall in line. The opposition on the other hand, was completely shut out of the process of creating legislation. Americans have seen a glimpse of the progressive system and are beginning to realize that it is not what we want.
I spent Thursday afternoon at the Tea Party rally in downtown Denver. I stood amongst hundreds of fellow citizens who are fed up with a government that refuses to listen to the people and instead distorts the Constitution to meet its own desires and needs. Together we stood before the Capital building and spoke out for change.
Later that evening I was back at CCU, listening to David Barton of Wallbuilders speak on the Constitution and how it would in all probability take forty years to roll back the gains in government and policy made by liberals and progressives.
After hearing this, I began to wonder if rolling these changes back is possible in our current social climate. We are in the day and age where everything we need and want is at our fingertips. With the click of a button or the swipe of a card we can obtain almost anything. And it seems to me that this attitude is beginning to permeate into our political beliefs and system. So the question is: do we have the patience and resolve to see this through and win the fight?
It will take an enormous amount of resolve on the part of conservatives if we hope to truly fix the system and return to the government of 1791. We cannot expect to mend over a hundred years of progressive reforms over night. Just as they slowly chipped away at the fabric of our nation, so too must we slowly peel back the layers of their gains. For if we were to simply do away with that much legislation at once, our government and system could possibly collapse and implode.
It will take us time but we can win this fight. We must never be afraid as Americans to defend our rights at any cost. Just as the brave soldiers who are immortalized upon the steps of the Capitol, we must be willing to give it all in order to keep our nation, our culture, and our freedom alive.
(Centennial Fellow) Responding to Bennett and Schaller on the matter of secession then and now, here's a somewhat different approach. First, who or what in fact, originally revolted and seceded from England? We all know the obvious answer, which is Jefferson’s. The first line of the Declaration states “when in the course of human events it becomes necessary for one people....” Thus, there had to have been, in some sense, a large group of people who consider themselves a nation. By this I mean, a group of people who have strong ties to a common identity. So, the nation of Israel is over 5000 years old, while the state of Israel is relatively young. Did this “nation” exist? It seems to me the best analysis here comes from Carl Degler who claims the colonies were split: one third for secession, one third against secession, one third who just did not care.
In fact, most of the political maneuvers which occurred between about 1774 and 1787 were performed by the colonies, if you prefer states. The way in which votes were taken in the Continental congresses, the discussions in Philadelphia over the Declaration of Independence, and the convention of 1787 were all taken by states. Therefore, the argument is that one people did not secede. Rather, the states, in some combination, seceded. This places the states as the forerunner of the Constitution. If the states wrote, ratified and passed the Constitution these states then have the right not to just secede, but merely leave. While I disagree with this line of thinking it is compelling.
Let us not forget that the Constitution was ratified by the states but not overwhelmingly. If one looks at the votes of the Constitutional ratifying conventions there is evidence for this.
Delaware, New Jersey, Georgia, Pennsylvania and Connecticut all passed the Constitution by wide margins. Next, in February 1788 Massachusetts ratified the Constitution by a vote of 187 -168. Maryland and South Carolina then ratified the Constitution by wide margins. New Hampshire was next. Their convention ratified the Constitution by a vote of 57 - 47. Virginia ratified by a vote of 87 - 76. New York, with the thinnest of margins, pass the Constitution by a vote of 30 - 27. A little math is called for. Let us look at some of the close votes. If we determine the number of votes, which, if changed, would have resulted in the failure of the Constitution in that state we see something interesting. Thus, a change of 10 votes in Massachusetts, would have brought down the Constitution by a vote of 177 - 178. A change of six votes in New Hampshire would have done the same thing, the vote total to 51 - 53. A change of six Virginia voters would’ve brought down the Constitution in that state by a vote of 81 - 82. Most interesting may be New York where if only 2 voters had changed their mind, the Constitution would’ve failed by a vote of 28 - 29. What would have been the political result if New York had not ratified? This possibility, of course, led to the Federalist Papers. North Carolina then ratified by an overwhelming majority and Rhode Island, waiting until 1790, ratified by a vote of 34 to 32. Therefore, if a total of 26 votes had changed in five states we would not have the Constitution.
Thus, a legitimate line of argument is created: the states revolted and declared independence, the states wrote the Constitution and the Constitution was not overwhelmingly accepted by the states, albeit ratification is ratification. If you will allow me that there are two reasonable arguments, one based on the idea that we are a united people, a nation and, that we are a conglomeration of state’s in a federal system where there is in essence a dual sovereignty; we are citizens of both the federal government and the state governments. Where are we then in American politics, beginning with the founding? We have two legitimate points of view on how the federal government and states interact. What happened, then?
In grand Madisonian fashion, we had a series of compromises to avoid secession. One is reminded of Edmund Burke’s comment, “Every human benefit, every virtue and every prudent act, is founded on compromise.” Why did these compromises fail leading to the use of force? If the Jeffersonian/Lincolnian argument of one people is correct why do they use force to impose their view on the south? A better question might be was the South wrong? Was the south so wrong that military action needed to be used?
The interpretation of the logic of the 10th Amendment may be needed. The Constitution sets out three sets of powers. First, are the enumerated powers given exclusively to Congress. The second set of powers are powers no government can use, e.g. an ex post facto law. All the rest of the powers reside in the people or the states. Since neither nullification nor secession are in any sense stated or implied in article 1 section 8, Congress has no control over these issues. They are in no sense, at least in the Constitution, prohibited powers. Therefore, the states have both the right of secession and nullification. My esteemed colleague, Greg Schaller admits as much: “ The Constitution is silent on the subject of states’' attempts to "de-ratify" their participation.” When silent, all powers go to the states except those powers which are prohibited.
What then of states’ rights? Prof. Schaller: “The repeated refrain of “states rights” or “property rights” was, of course, nothing more than the South’s claim to protect their “right” to own other human beings; a claim which Lincoln correctly argued is not grounded in the ‘laws of nature or nature’s God.’” If one understands the arguments of the South, states’ rights award of the most fundamental foundations of the Constitution. I think that in terms of property rights John Locke has given a sufficient enough argument. In arguing against the divine right theory of kings, Locke reasoned deductively that no one has inherent dominion over anyone else. The argument of the South that blacks were not human and therefore property is completely specious. My personal opinion is the South never really believed this either.
Not trying to put words into Prof. Schaller’s mouth but I think the implication is that states’ rights were destroyed by force. States’ rights were then sent off to some political Valhalla with passage of the 17th amendment. Thus, it can be argued that Abraham Lincoln destroyed states’ rights and paved the way for one of the most egregious alterations to the original Constitution. When the job of appointing senators by state legislatures ended effectively the representation of states interests was done away with. Senators no longer represent their states in the give-and-take and compromise of federalism. Rather, senators now represent the people of the state from which they are elected. There has also been, in my opinion, a sense that senators now represent the entire nation and not just their states. I have no proof for this, but it seems logical to me.
Let me finish by positing an example of how the loss of states’ rights has led to the mis -apportionment of representation between the states and the national government. Except for the willfully obtuse, all know that the cost and size of the federal government will rise massively in the future. According to the president much of the savings will come by shifting the burden of Medicare to the states. If senators still represented the interests of their state, where the ambition of the state’s counter the ambition of the federal government, the states would have seen their loss of income and loss of power and the Senate would not have gone for Obama care. Therefore, I think we should take the issue of states’ rights more seriously. I conclude that states’ rights include the right of secession.
What then of the secession in the Civil War? I think the South had the better legal argument, appealing to the Constitution. The North had the moral argument. Don’t forget in the painting of the famous Appomattox Courthouse both Lee and Grant were wearing white hats. Is the South in fact, the bad guy because of secession?
('76 Contributor) As truth seekers we are obliged to review everything, including term limits, with the utmost objectivity. My complaint about term limits is that this reform is far too modest to save us from what ails our society. A point from the book Reinventing Government was spot on, "The New Deal paradigm of government is obsolete." Clinton was president then and made the book famous, but did nothing to build on its few sound points. I approached the authors (Osborne and Gaebler) to ask why he had not articulated what the new paradigm might be. No response.
The Reason Foundation countered the left-leaning book with Revolution at the Roots. In short it said "follow the 10th Amendment" and equally offered more words than vision and failed to articulate a new paradigm. Each side followed with another round of rebuttal books, lots of interesting reading and a few fresh ways to view a few things, but no one really touched further on the need for a new vision ... a new paradigm.
Because a practical new vision has not yet been articulated by either the left or the right, problems fester. Public anger and frustration grow ... and you know what I'm talking about. The welfare state (that obsolete paradigm) labors to irretrievably entrench itself, at the same time global free trade and global tax competition threatens to bankrupt all welfare states. My point is ... we have a lot more substantial things to focus on than term limits at this point. My Reform Party friends in the mid 1990s never gained the understanding, that it was the system that corrupted the people more than the incumbents were fundamentally corrupt. They were incapable of thinking any more deeply than kick the bums out. Writing for the elimination of term limits will bring attention to your name. That may be the only benefit. An activist movement to that effect will fail (particularly with the current mood on the street) ... with the net result of your time and mine being consumed and diverted from items of greater consequence and current relevance. It saddens me as much as it anyone that profound leaders such as Bob Schaffer and John Andrews were victims of term limits. Yet, your title "brain drain" both insults our population and suffers myopic vision. It infers a point that I know Bob would never claim himself, that he is, without contest, the most intelligent of the 700,000 people in his CD. Surely there must be at least a few in 700,000 who can match his intellect and leadership. Your title also degrades their subsequent achievements since leaving office as less important than being in office. At best, such an assertion is debatable and my personal view is with Jefferson's and what they learned in serving helps them to contribute to society in their later endeavors ... making their in-office contributions less substantial than their subsequent contributions to society. We should be on our guard of anyone who views serving in office as an end. Like success and happiness it should be part of the journey. None of us should allow ourselves to fall into the trap of worshiping the golden calf of government or our elected officials. This view is counter to the Declaration ... counter to freedom and liberty.
Dennis Polhill is a senior fellow at the Independence Institute and co-chairman of the Colorado Term Limits Coalition. Editor John Andrews thanks Mr. Polhill for his gracious compliment above, but maintains as always that every glance in the mirror gave Andrews an argument for term limits -- namely his own fallen human nature, not to be trusted with power too confidently or too long.
('76 Contributor) As a political scientist I was trained to go to the root of issues, to trace the origins of events to the distant past and to reflect on the quality of government by reference to types of regimes. Frequent elections, conducted from the highest to the lowest level of government, enables public opinion to express itself, correct previous errors or reward elected officials for competent or incorruptible service.
Though there are times in American politics—like today—when popular uprisings occur that aim to throw out the “bums,” for the most part the American electorate—those who register to vote and actually vote in elections—is satisfied to re-elect incumbents. Over time these same incumbents tend to represent special interests, not the public interest, and they remain in office well past normal retirement age.
That is why many states impose “term limits” on service of public executives. Colorado is an example.
Article V, Section 3 of the Constitution of the State of Colorado states as follows:
Section 3. Terms of senators and representatives. (1) Senators shall be elected for the term of four years and representatives for the term of two years.
(2) In order to broaden the opportunities for public service and to assure that the general assembly is representative of Colorado citizens, no senator shall serve more than two consecutive terms in the senate, and no representative shall serve more than four consecutive terms in the house of representatives. This limitation on the number of terms shall apply to terms of office beginning on or after January 1, 1991. Any person appointed or elected to fill a vacancy in the general assembly and who serves at least onehalf of a term of office shall be considered to have served a term in that office for purposes of this subsection (2). Terms are considered consecutive unless they are at least four years apart.
Though Colorado Term Limits serve the purpose of changing the occupants of important seats in the State Legislature, those same Term Limits also have negative consequences.
Let’s begin with the quality of elected state legislators. Why is it that the Colorado State Legislature is laughingly referred to as “stupid”? A more considerate term might be “unskilled.”
Elected bodies that change membership frequently seldom retain the knowledge of past experience. For example, if your memory was erased every eight years, you would, at best, be described as “unskilled.”
Yorktown University’s Gary Wolfram reports that Republicans in the Term Limited state legislature of Michigan crafted legislation intended to bind the spending practices of Michigan’s Democratic Governor. The legislation was crafted imperfectly and, as a result, the spending power of Michigan’s Governor was increased.
Recently, the Minority Leader of the Colorado State Senate,Josh Penry, announced that he would not seek another term of office. After all, service in the legislature requires enormous sacrifices of time, and with Term Limits, those sacrifices will be for naught in a very short period of time.
With Josh Penry and many other worthy legislators departing public service per the terms of Article V, Section 3 of Colorado’s State Constitution, the state legislature loses their knowledge, commitment and leadership. That’s just those who serve. Term Limits deter ambitious politicians to seek election to the State Senate.
But, something else occurs as well.
When legislative and executive service is Term Limited the state bureaucracy grows in power. Power doesn’t evaporate just because elected politicians leave. It moves to more permanent offices. As the repository of regulations, historical knowledge and practices, non-elected public executives play increasingly important roles in Term Limited states. And the numbers of bureaucrats grow.
I encourage readers to click here to access statistics kept by the U.S. Census Bureau on the number of federal, state, and local government civilian employees and their gross payrolls.
You will find that Term Limited states have more public employees per capita than non-Term Limited states.
In other words, citizens will pay, one way or the other, by Term Limiting or not Term Limiting their elected state officials. States that have Term Limits will grow their professional bureaucracies and those that do not have Term Limits will have incumbents who stay too long in office.
Which is worse?
If you consider that elections are the means by which the will of the people is expressed, the empowerment of non-elected public executives is clearly worse.
I’m concerned, frankly, that Term Limits in Colorado block one avenue through which well intentioned politically active citizens can bring their knowledge and skill to serve the public good.
Remember Rick O’Donnell? He served Governor Owens as head of the Colorado Commission on Higher Education. He ran for Congress, lost, and now works for an academic institution in Texas.
Remember Marc Holtzman? He served in Governor Owens' Cabinet. Holtzman ran for Governor, lost, and now works for Barclays Bank in London.
Remember former House Speaker Andrew Romanoff? He was term limited, decided to run for Governor and now is seeking a seat in the U.S. Senate.
The State Legislature of Colorado is not an avenue that the politically ambitious travel. They seek to become top officials with Colorado’s Governors and then run for federal office. This “brain drain” is very real because public service in the State Legislature is Term Limited.
The only way to stop this brain drain is to repeal Article V, Section 3, of the Constitution of the State of Colorado and allow men and women of ability and ambition to serve their fellow citizens as members of the State Legislature for as long as they are re-elected.
Dr. Richard Bishirjian is President of Yorktown University, on whose Yorktown Patriot blog this article first appeard as "Colorado’s ‘Brain Drain’ and Term Limits," March 28, 2010.
(Townhall.com, April 2) Dear Grandson: I risk writing you this letter in order to pass along some censored history. Today’s America of 2050, officially atheist by law, is a very different place from the “nation under God” of my boyhood in 2010. When you take your first communion in Denver’s underground church on a spring morning once known as Easter, you need to know how this and other holy days disappeared from the American calendar.
Our country at mid-century remains the envy of the world, still fairly prosperous and optimistic, still claiming to be the land of the free and the home of the brave. But I’m sad to tell you that during my lifetime, “brave” and “free” have been redefined so as to disallow any reverence for that power whom our founders called the Creator. Christians and Jews have been made outlaws.
So hide my letter with your Bible; both are illegal to possess. It is only because your father and mother honor the civil-disobedience tradition of Martin Luther King and ignore the ban on Judeo-Christian writings that you can read the Scriptures at all.
How tragically does the noisy complacency of my parents back in the Bush and Obama years contrast with the quiet courage of your parents today. Again we see how adversity brings out the best in the people of God, as all history teaches. If believers had been more vigilant for freedom of conscience back in the Teens, judges wouldn’t have dared to rewrite the First Amendment as they did in the Tiernan case.
Instead, young Timothy, your generation grows up in a spiritually-neutered culture that has swiftly taken over what was once the most devout nation on earth. Hence this year of 2050 is punctuated by Bunny Day and Kosher Day on what used to be called Easter and Passover – by Turkey Day and Santa Day in place of Thanksgiving and Christmas. To silence all theistic echoes, even the secular holidays of Memorial Day and Independence Day have been renamed as Peace Day and Sparkler Day.
The dominoes began falling with the election of a “Freedom from Religion” activist, Robert Tiernan, to the Colorado House in 2010. Once in office, he played on the Catholic sex scandals, allegations of evangelical homophobia, and the anti-Israel mood to portray the God of the Bible as civilization’s worst enemy. His bill branding the Gospels and the Torah as hate speech became law on Good Friday, 2012.
A coalition led by broadcaster James Dobson, Archbishop Charles Chaput, and Rabbi Hillel Goldberg filed suit, denouncing the act as “tyranny worthy of Lenin or Nero.” But the U.S. Supreme Court upheld it. The majority opinion by Justice Keith Ellison, the Muslim former congressman newly appointed by President Obama, ruled that “religion” in the First Amendment excludes by definition every thought, word, and action that manifests intolerance toward any species whatsoever, or the planet itself.
Legislation and court rulings piled on rapidly after that, first marginalizing, then stigmatizing, and finally criminalizing the followers of Jesus and Moses. Islam was judicially certified as a “political system,” however, giving it indulgence and then preference – resulting in the Sharia-infected USA of today. Buddhism and earth-worship also remained free, the one as a “philosophy,” the other as “science.”
The times are grim, my boy. Yet the faithful have survived worse. This Easter, albeit in secrecy and danger, you kneel to a God who loved you enough to come here and die so you might live. Your friend Aaron whispers at Passover his gratitude for a divine deliverance from bondage and death. Down the centuries, neither Caesar nor Satan nor all our own sins have been able to halt these ancient devotions. Nor shall they now. Stay strong – Grandfather
A discussion of secession ultimately centers on the question of “quitting,” and more specifically, when is it right to quit, if ever? There are two basic questions that must be asked: first, does such a fundamental right exist; and second, is it Constitutional.
Whenever talk of secession arises, whether in the early to mid 1800’s in America or now, a dissatisfied group of citizens expresses their frustration by demanding a break of political ties and a separation from the Union.
It is essential from the outset to clarify a few terms, specifically a distinction between secession and revolution (at least in the minds of Jefferson, Madison and Lincoln). While revolution and secession both represent a breaking of ties with others, I will attempt to show how Lincoln’s understanding of the difference between the two was much greater than just semantics.
The key distinction between the two concepts is of intention, ultimate goals, and most importantly, basis. For Lincoln, the distinction could most clearly be seen by comparing the cause of 1776 vs. the cause of 1860-61. In Lincoln’s mind, one breaking of ties was just, while the other was not.
In the Declaration of Independence, Jefferson provides us with the theoretical argument for revolution, as well as the practical evidence based upon this theory of why the colonists were just in their cause of breaking their “political bands” with Great Britain. The Declaration affirms that when a group’s God-given rights have been denied (and when political means to remedy the problem have failed), the ties can be broken. Essential to the American Revolution then, is the fact that the natural rights of all men were being denied. At this juncture, a people can legitimately break their political bands and seek their independence. In Lincoln’s mind, this is the legitimate nature of revolution.
We can contrast this with the political separation of 1860, when the South, after losing an unquestionably constitutionally held election, unsatisfied with the results, decided to sever their political ties with the North. For Lincoln, the claimed right of separation on the part of the South could not have been more different then the cause of revolution and liberty in 1776. Following the South’s secession, Lincoln repeatedly questioned what fundamental right was being denied for which they could legitimately “quit” the Union? In his mind, no such claim or cause existed. The repeated refrain of “states rights” or “property rights” was, of course, nothing more than the South’s claim to protect their “right” to own other human beings; a claim which Lincoln correctly argued is not grounded in the “laws of nature or nature’s God.” Rather, it is the essence of corrupt political rule which is based in the denial of natural rights.
Lincoln often compared the institution of slavery with the claimed “divine right” of Kings, both of which were a denial of individuals’ fundamental rights, where some were placed in a position to rule over others by the mere chance of birth. Both institutions are a denial of a person’s God-given liberty and, as such, both can be legitimately revolted against. For Lincoln, there was only one group who could lay claim to a legitimate right to “quit” in 1860, and it certainly wasn’t white southerners. Rather, it was their African slaves. Lincoln never denied a legitimate right of breaking political ties. What was essential was the nature of the cause. Quitting because you don’t like an election outcome or because you fear you will lose your claim to own another person both fail the test of legitimate causes.
While some suggest that the difference between secession and revolution is merely semantic, for Lincoln it was clear that the basis and intentions for breaking ties was more than that.
Our second question is this: does a right of secession exist within our constitutional framework. The answer to this question is simple: no. The Constitution is silent on the subject of states’ attempts to “de-ratify” their participation. More fundamentally, the underlying premise is one of perpetuation. The preamble of the U.S. Constitution makes this clear:
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
The Union was not to be temporary, but permanent, designed not just for the present but for posterity. The inference is clear: this was a Union intended to last.
Finally, a political society based on the idea that “quitting when unhappy” with the political twists and turns of our government is destined for destruction. Lincoln described secession in this way: “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 opinion and sentiments is the only true sovereign of free people. Whoever rejects it, does, of necessity, fly to anarchy or despotism.” The nature of quitting, if held as a fundamental, stand alone principle, will ultimately lead to anarchy, soon to be replaced by despotism.
Constitutionalism demands an adherence to the laws, even if we do not like the decisions that are being made. I may not support a war, but I am obligated to pay my taxes and support it – perhaps even fight in it – as a part of my obligation as a citizen. Likewise, states are obligated to obey the laws of the land as a part of their commitment to the perpetuation of the Union. The solution to bad laws is found in our system of free and frequent elections. Lincoln famously stated in his July 4, 1861 address to Congress that “ballots are the rightful and peaceful successors of bullets; and that when ballots have fairly and constitutionally decided there can be no successful appeal back to bullets; that there can be no successful appeal except to ballots themselves, at succeeding elections. Such will be a great lesson of peace; teaching men that what they cannot take by an election, neither can they take it by war; teaching all the folly of being the beginners of a war.”
Constitutionalism requires us to accept election outcomes, and then pursue change in later elections. This is not to suggest that ties can never be broken. As mentioned above, Lincoln truly believed that southern slaves did indeed have a legitimate claim to break ties with their oppressors.
The South never claimed that they were revolting from the North, nor did they base an appeal to quit in the Declaration or some other natural law basis of rights. To do so would have forced them to explain how in nature their cause was legitimate, and how their continued support for the institution of chattel slavery was moral. Had the North been denying a fundamental natural right of the southerners, the South would have had an absolute claim to revolt against its northern oppressors. No such claim can be made.
With current discussions of secession being thrown around and an increasing public opinion in support of a right of secession, we would do well to consider Lincoln’s warnings. If we ever reach a point where some demand a breaking of the political bands that have held this Union together for over 200 years, we must be certain that all political means to remedy the problem have been exhausted and that the cause be one grounded in the laws of nature and nature’s God
Editor: A poll from 2008 on secession talk in the USA caught my attention and that of Centennial Fellow Vincent McGuire, who teaches politics at CU-Boulder. James Bennett, author of The Anglosphere Challenge and contributor of this month's Centennial Review on the roots of American liberty, himself a Centennial Fellow, penned this thoughtful commentary at our invitation. The poll findings and a few words from Vince and me follow the main article.
James Bennett writes: I think the most important point made in the Zogby poll is the one at the end, that secession sentiment is something that arises in times of stress and increased political polarization. It's the sort of would-be silver-bullet solution that some types of people are prone to embrace without any detailed or realistic analysis. It's also an old American tradition to talk about secession. It's interesting to read the opening sections of Jay Winik's April 1865 where he lists the major secessionist plots and conspiracies that emerged in the early decades of the Republic; reading them, one is tempted to conclude that preservation of the Union did require at least a minor miracle. Particularly in Texas and Hawaii, which were once generally accepted members of the international system of nations, it is a solution that will always have a certain amount of sentimental attraction.
It's also the case that the USA is not a nation in the sense used by Herder or List; in fact, no English-speaking nation meets such definitions. There is no desire on anybody's part to construct a nation-state that would include all English-speaking people and exclude all others; there's not even a name for such a thing. We are quite happily divided into a number of self-governing polities that have the status of nations in the international system. Over the past two centuries, there has been quite a bit of sorting-out as to who was in what polity, and of course in North America, a substantial amount of warfare in regard to the matter. It was settled by force in 1814 that Canada would not be part of the USA, and in 1865 that the Southern states would be. But also, referenda, legislative campaigns, and legal processes have determined that Newfoundland would not, and later would be part of Canada, that New Zealand would not be part of the Australian federation, but that Western Australia would remain so despite a 1933 referendum vote to secede. Even today, it is not impossible that Quebec will not be part of Canada, nor Scotland part of the United Kingdom, within a decade or two.
What we in the English-speaking world seem to have evolved is an approach to statehood and nationhood that has two levels; one being the relatively close-knit regional communities that share a wide assortment of the sorts of ties Burke described -- associational, denominational, commercial, familial, sportive, ethnic, and only lastly political. They can often be traced by the footprint of media markets or professional sport team allegiances. In the USA, states are typically made up of one to three such communities, but they have typically worked out a political modus vivendi, and states each form a genuine political community. At a higher level, these communities have come together as unions, typically but not always formally federative. The four big ones are the UK, the USA, Canada, and Australia. Because all four unions were formed after substantial literacy had been achieved, these unions were debated and discussed very widely, and the terms of union were laid out explicitly. In Britain, for instance, in 1706, the proposed Union was debated widely at the congregational level in the church of Scotland, where the majority of men and women were literate. Because of the rational, explicit bargaining process by which these unions were formed, I call them "Lockean bargains". Thus our political fabric consists of a Burkean warp and Lockean weft, so to speak, and has proved to be quite a durable fabric.
Of course, subsequent history then imparts Burkean qualities to these Lockean bargains. Shared experience and sacrifice, particularly in wartime, creates natural sentiments of patriotism, and dictates a unique national narrative that most share in turn. (Civil war and sharp division, in contrast, create counter-narratives and erode the wider patriotic sentiments. We saw this in the American South.) Successful narratives create a sense of nationhood as strong or stronger than those of entho-relgious nation-states.
So, what does all this have to do with the recent upsurge of secessionist sentiment, or the question of legitimacy of secession? I would say that, at the beginning, the United States was seen by most through the lens of compact theory. Certainly, if we can imagine one of the 13 states voting to rescind its ratification of the Constitution the day after it had sent the ratification off, we would expect the other states might have been annoyed, but very few would have considered that they would have a moral or legal right to raise troops and invade the recalcitrant state. (Hamilton might have...) By the time of the Nullification Crisis, Andrew Jackson felt entirely justified in threatening to march into Charleston and start hanging people. And by 1861, the population was deeply divided between a unitary and compact understanding of the matter.
As John points out [below], the unitary theory won out, being on the side of the bigger battalions. But where would that leave us today if a state voted clearly by referendum to secede? As a classical liberal I am attracted to compact theory. And in fact, there are several Constitutional paths to permitting secession; most clearly, by a constitutional amendment setting forth ways and means of doing so.
We are accustomed to thinking of secession as a replay of 1861. But we may see a different cast to the matter. Consider that the current Administration has supported the proposed statehood of Puerto Rico. This may yet be accomplished within this Congress, possibly by the same questionable tactics by which the healthcare nationalization bill was passed. And say that, in a subsequent Republican Congress, a substantial element of the Puerto Rican electorate approached Congress and requested that statehood be undone, either to achieve separate nationhood or to revert to Commonwealth status. If a mechanism were created to permit this, it would be, (as opposed to finding a justification for nullifying the recognition of statehood) legally speaking, a form of secession, and it would be difficult to enunciate a legal theory by which this would not also be available to, say, Hawaii. The US has always maintained that if Puerto Rico clearly expressed a desire for full independence, it would grant it, as it similarly had done for the Commonwealth of the Philippines. Where would the Right stand on this question?
My own position, to the extent mine is settled, is that although I believe in compact theory at some basic level, it must be highly qualified by Burkean considerations. Membership in a union and a federation includes promises and trusts. We have all shaped our actions on the expectation that the Union will stand and that the costs we have incurred on behalf of our fellow citizens will be reciprocated, if not dollar-for-dollar, then in some generic and ultimately ongoing fashion. Secession treats this intergenerational bargain as a game of musical chairs in which the obligations cease when the music stops. This was not the understanding under which Americans for the past century, at least, have made sacrifices of life and fortune for each others' sake, and we violate, at least to some degree, the trust that was involved in those sacrifices if we permit secession too lightly or with mere legalistic justification.
So I am left with the conclusion that although secession can be justified under some circumstances -- as heirs to the Signers of the Declaration, I think we are obliged to grant such -- there must needs be a strong bias toward the continuation of the Union, so long as it is a Union of the free.
Earlier, McGuire had written: When I saw this Zogby poll on the web, it struck me as something we should be discussing. To which Andrews replied: Well, to me it's pretty simple. The Union formed by the Constitution of 1787 is perpetual de jure, and was validated as such de facto by the Civil War. I see no reason to alter that arrangement, and many good reasons to keep it as is. I will ask some of our other Centennial Fellows to offer their perspectives as well.
AND HERE'S THE POLL ITSELF:
A new [July 2008] Zobgy/Middlebury Institute poll reports that 22 percent of respondents believe that states have the right to peaceably secede from the United States. The figures go up considerably among liberals, Latinos, blacks, young people and Southern residents. From the press release:
The level of support for the right of secession was consistent in every region in the country, though the percentage was slightly higher in the South (26%) and the East (24%). The figures were also consistent for every age group, but backing was strongest among younger adults, as 40% among those age 18 to 24 and 24% among those age 25 to 34 agreed states and regions have secession rights.
Broken down by race, the highest percentage agreeing with the right to secede was among Hispanics (43%) and African-Americans (40%). Among white respondents, 17% said states or regions should have the right to peaceably secede.
Politically, liberal thinkers were much more likely to favor the right to secession for states and regions, as 32% of mainline liberals agreed with the concept. Among the very liberal the support was only slightly less enthusiastic – 28% said they favored such a right. Meanwhile, just 17% of mainline conservatives thought it should exist as an option for states or regions of the nation.
Asked whether they would support a secessionist movement in their own state, 18% said they would, with those in the South most likely to say they would back such an effort. In the South, 24% said they would support such an effort, while 15% in the West and Midwest said the same. Here, too, younger adults were more likely than older adults to be supportive – 35% of those under age 30 would support secession in their state, compared to just 17% of those over age 65. Among African Americans, 33% said they would support secession, compared to just 15% of white adults. The more education a respondent had, the less likely they were to support secession – as 38% of those with less than a high school diploma would support it, compared to just 10% of those with a college degree.
To gauge the extent to which support for secession comes from a sense that the nation’s current system is not working, a separate question was asked about agreement that "the United States’ system is broken and cannot be fixed by traditional two-party politics and elections." Nearly half of respondents agreed with this statement, with 27% who somewhat agree and 18% who strongly agree. [Emphasis mine]
The telephone poll, conducted by Zogby International, included 1,209 American adult respondents. It was conducted July 9-13, 2008, and carries a margin of error of +/- 2.9 per cent.