Secession or Declaration of Independence? Part 3 of 5

by Timothy Baldwin

Where a body-politic has declared its independence from a government or political association, the terms of the constitution creating that enslaving tie no longer apply to that body-politic and it becomes completely independent, regardless of what the constitution’s terms were. In so doing, “that as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.”[1] Were it not for this natural right being actually implemented throughout history, all people on earth today would be most miserable, including those in America. And indeed, when this right is ignored, denied or disparaged, freedom diminishes in accordance with the sufferings of the people.

Some attempt to divert the natural right of secession with the alleged absurdity or inconvenience of a state’s being able to separate for just “any” reason whatsoever, as if the people of a state are too dumb to know what their happiness and safety requires or as if force is the most effective means of union, as opposed to loyalty and friendship.[2] Human nature and experience prove that people will suffer evils so long as evils are sufferable,[3] but the matter of practicality does not address its rightness or its principle. Either they do or they do not have this right, regardless of practicality. The practicality of secession is a different matter altogether, just as Woodrow Wilson observed about those secession-objectors in days gone by.[4]

The fact is, if the colonists judged their decision to declare independence on practicality, they never would have moved forward on the decision and would have remained a colony of Great Britain. Recognizing this fact makes the success of the United States all the more amazing and awesome; for in fact, there were many who perceived the superiority of their enemy’s power as indefensible: “‘See the strength of the British Empire, see our wasted state; your hope is vain.’”[5] But fatalist attitudes have never been the progenitors of freedom, but only the perpetuators of slavery. Preparation is necessary, yes; but fear is enslaving.[6]

If the individual bodies-politic do not have the right by virtue of the constitution’s legal effect, then it is pointless rhetoric to talk about natural laws or rights because the constitution would be deemed prohibitive of any and all separation from the union except as provided by the constitution itself. The title (e.g. secession, declaration of independence, etc.) of the separation would have no effect to the constitution’s prohibition of separation. The substance of the constitution would universally prohibit separation, for (as applied today) the federal government would deem the state to have waived that natural right, just as Great Britain told the colonies in 1776.

On the other hand, if the states do have the natural right of separation, even if only “under certain conditions” (as justice and freedom demanded), by means of declaring independence or otherwise, then the constitution’s supposed limitations or prohibitions upon their right to secede are non-effectual at that point. Their separation from the union would be as legally and morally certain as the colonies’ separation was in 1776. There is no need to take a case to the U.S. Supreme Court through “constitutional” process. There is no need to ask permission from three-fourths of the states. If it is a natural right, then a constitution’s supposed prohibition serves as no preventative measure, unless of course you want to argue:

“Sure, you have a natural right to secede. Go ahead and secede, but we (the non-seceding states, following the steps of Great Britain) are going to declare war on you for exercising your natural right, because secession is ‘against the constitution’. So, be ready to secede and die, pukes!”

Admitting the natural right of separation supports the conclusion that those who would prevent their move for independence do them the most egregious harm to that state.[7]

Ultimately, union through a constitution is not the Supreme Law of the Land, nor are the terms of the constitution the Supreme Law of the Land where a body-politic has separated itself from the authority of the constitution. There is a higher law than the constitution. “SELF-PRESERVATION is not only a NATURAL RIGHT, but an OBLIGATION imposed by nature, and no man can entirely and absolutely renounce it. And though he might give it up, can he be considered as having done it by his POLITICAL ENGAGEMENTS, since he entered into society only TO ESTABLISH HIS OWN SAFETY upon a more solid basis?”[8]

More fundamentally supreme than a constitution, “the SAFETY OF THE PEOPLE IS THE SUPREME LAW; and this law is agreeable to the strictest justice,–the people having UNITED IN SOCIETY ONLY WITH A VIEW TO THEIR SAFETY AND GREATER ADVANTAGE.”[9] Thus, where the laws of the constitution are used to contradict the laws of nature, the laws of nature always prevail when the state decides to separate itself from the political association causing its demise.

And so, just as the Declaration of Independence bases its separation upon the natural laws of God and rights of man (despite the existence of a constitution, despite the government’s obligation to religiously comply with that constitution and despite the procedures inherent in that constitution for redress), where a declaration is so enacted by a body-politic, a constitution’s prohibitions on that body-politic no longer apply (assuming for argument’s sake that a constitution did in fact prohibit separation).

Thus, even in the days of our forefathers, where monarchies were allegedly perpetual through succession (c.p. “perpetual unions”), our enlightened forefathers rejected that principle of perpetual government and reign over the people and rather accepted the maxims of self-government, consent of the governed and right to separate:

“[I]f the nation plainly perceives that the heir of her [the nation’s] prince would be a pernicious sovereign, she [the nation] has a RIGHT TO EXCLUDE HIM. The authors whom we oppose grant this right [of succession] to a despotic prince, while they refuse it to nations. This is because they consider such a prince as a real proprietor of the empire, and will not acknowledge that the CARE OF THEIR OWN SAFETY, AND THE RIGHT TO GOVERN THEMSELVES, STILL ESSENTIALLY BELONG TO THE SOCIETY, although they have intrusted them, without any express reserve, to a monarch and his heirs.”[10]

To Vattel, this is “a maxim injurious to human nature, and which they would not have dared to advance in an enlightened age.”[11] This same injurious maxim the colonies rejected, despite Great Britain’s claim that the colonies did not have the right to secede based upon constitutional construction.

In “The Secession From Parliament Vindicated,” author Chris Wyvill makes observations concerning the colonies’ right to secede from Great Britain in 1776:

“In [Great Britain’s] estimation, Secession is always a dereliction of Public Duty; it is alike inconsistent with the principles of the Constitution, and injurious to the welfare of the Community.”[12] (Sounds familiar.)

Wyvill describes the Declaration of Independence as act of SECESSION, for indeed it was. He further points out Great Britain’s argument against secession: that secession violates the “principles of the Constitution.”[13] Apparently, the arguments against secession and separation have not changed in 250 years–more like thousands of years. The difference between the positions: the British government was preserving the status quo of their own power and prestige, and the colonies were rejecting the government’s authority and immediately obtaining freedom for themselves and their posterity. There was only one way to obtain freedom, constitutional posturing notwithstanding: secession and independence.

Footnotes:

[1] Declaration of Independence

[2] “Unity [is] not of government, but of brotherhood.” Terrence McSwiney, Principles of Freedom, (New York, NY, E.P. Dutton & Co., 1921), 42.

[3] “[A]ll experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.” Declaration of Independence

[4] “Those who worked the theory [of secession] out to its logical consequence described the sovereignty of the federal government as merely an emanation from the sovereignty of the States. Even those public men who loved the Union most, yielded theoretical assent to the opinion that a State might legally withdraw from the government at her option, and had only practical and patriotic objections to urge.” Woodrow Wilson, Disunion and Reunion, 1829-1909, Ed. Albert Hart, (Longman’s, Green and Co., (Chicago, IL, 1918), 45-46 (emphasis added).

[5] Terrence McSwiney, Principles of Freedom, (New York, NY, E.P. Dutton & Co., 1921), 18.

[6] “The fear of despotic governments naturally arises of itself amidst threats and punishments.” Charles de Baron Montesquieu and Julian Hawthorne, ed., The Spirit of Laws: The World’s Great Classics, vol. 1 (London: The London Press), 34. “When governments fear the people, there is liberty. When the people fear the government, there is tyranny.” –Thomas Jefferson.

[7] “In all cases…in which a nation has the right of judging what her duty requires, no other nation can compel her to act in such or such particular manner: for any attempt at such compulsion would be an infringement on the liberty of nations.” Emer De Vattel, The Law of Nations, (Indianapolis, IN, Liberty Fund, 2008), 74.

[8] Emer De Vattel, The Law of Nations, (Indianapolis, IN, Liberty Fund, 2008), 111.

[9] Emer De Vattel, The Law of Nations, (Indianapolis, IN, Liberty Fund, 2008), 114.

[10] Emer De Vattel, The Law of Nations, (Indianapolis, IN, Liberty Fund, 2008), 115.

[11] Emer De Vattel, The Law of Nations, (Indianapolis, IN, Liberty Fund, 2008), 115.

[12] Christopher Wyvill, The Secession From Parliament Vindicated, 2nd edition, (York, L. Lund, Little-Stonegate, 1799), 6.

[13] Such a “constitutional” argument against secession reminds me of those philosophers who are able to prove anything and everything, but who believe nothing–except maybe their own power.

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