Has the General Government the Right to Coerce a State?

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Has the General Government the Right to Coerce a State?  (1860) 
by James Dunwoody Brownson De Bow
Essay of http://www.archive.org/details/interestinslaver00debo

To consider this question, a distinction must first be drawn between the right of war and the exercise of a constitutional function of the government on itself, in a constitutional way. The right of war exists only against other governments — and by the law of nations, it is immaterial whether these are usurping or legitimate governments. It suffices that each party has an actual possession or government, a control de facto over some territory or people which it enjoys, disconnected with, or by dispossessing the other's government. The writers on public law agree that a declaration of war necessarily admits that the parly declared against is an actual government — even though its legitimacy as a government may be the very point in dispute; and because it is in fact, a government, other nations who have treaties of amity and peace with the one may enter into like treaties with the other, and recognize the government de facto without impairing their neutrality or violating their obligations of amity and peace to those who claim legitimate authority over the government de facto.

It is not from the length of time that the government de facto has existed, but from the fact that the opposing government claiming to be legitimate, cannot control the other by civil means, and has not an actual military possession and control over it — that other nations are justified in treating it as a government and entering into alliances with it. Thus, in our own War of Independence, after the declaration, Spain, Holland, and France, acknowledged the independence of the Colonies, and formed treaties, without those acts violating their existing treaties with England.

If, then, the secession of a State from this Union were followed by a declaration of war against her by the United States, such declaration would open to foreign nations the right to make alliances and treaties with her, commercial and otherwise, without thereby violating their treaties with the United States; and all Europe, if their interests or sympathies led them in that direction, would be morally free to aid and help her in sustaining her act of secession.

Attempts to coerce by war, then, would tend, by relieving foreign nations from the obligation of non-interference in domestic questions, to confirm secession, and to expose what ought to be a purely domestic question of constitutional constriction to the complications and embarrassments which rival powers could easily create, without endangering existing treaties. It would be the most effectual means of removing all the obligations of a State, and enabling her to resist any return to them. No one could be so foolish as to desire to submit the construction of the Constitution of this Union to the interference of foreign and hostile nations. It would surely bring down on this Union the calamity of disunion, and in itself be unconstitutional. The construction of the Constitution is domestic to the States of the Union, and should be adjusted through their domestic machinery, without exposing these States, by the imprudence of hostilities, to that foreign interference which the Union was created to avoid.

Half the strength of these Colonies in the Revolution was derived from foreign interference, and had England, by avoiding force, kept the question of taxation purely domestic, she might have preserved, instead of losing, her connexion with her Colonies, and been spared the hatred that has survived the hostilities that gave it birth by more than eiiility years. It was madness in lier so to act as to let Ln the rival and jealous powers of Europe to give aid and comfort to the weaker side. Let such madness be avoided by us.

The free people of the thirty-three States of this Union boast that their obedience is paid to the power of the laws they make, and not to the persons who are enlrnsied with the duty of executing them; that resistance to tyrants is obedience to God.

We may as well commence this examination by the proposition — That if a secedui!^ ^late cannot he coerced hji the crenercil government i"iti'iuiil viuhilnig the Constitution and the laws, then she cainiot bhe coerced at all. This remits us to two enquiries: What is the offence against the Constitution by a State when she secedes? and, What Constitutional mode and means of punishment or prevention by the general government exist? It is not our purpose to draw the line between secession and revolution, as abstract ideas; we are content to examine a single case, which is stated thus : The people of a sovereign State in Conveiilion secede from the Union by repealing the ratification she gave to the Constitution of that Union of 1785, What is the offence? and what the means of prevention or punishment?

We admit that while she remains in the Union there are many means pointed Gilt by ihe Consiiiiftion to compel her citizens to obedience to the law. The Constitution was binding upon her citizens, because the Statle in her sovereignty silting in Convention adopted it. or to use the better expression, ratiiied it. The Constitution was a mere project or speculation of a Convention of philosophers when it came lothe State Convention — it depended on the jieople of each Stat«  in its State Convention for the power to become ii law; and because Slates were soveieign and did ratify it, then-fore it became part and parcel of the Slate Constitutions, of equal force and obligation with the other orffanic acts of the people of the Slates in their sovereignty, providing for a government for Ihe Stale. It hns the like force on the sovereign people of a State with their Constitntioii, and no more, no less, in this, that it purports to represent the will of the State, and is law so long as it has the solemn consent of the people of the Stale, acting in their sovereignty. By a Constitution, the people of a Slate delegate the power of representing their sovereij^nty ; but ihev do not renounce the sovereignty or iraiisl'cr it. A Constilulion makes agents to exercise powers of govern- ment, and limits and dehnes the spheres and powers of these agents, the servants ol the people. It does not transfer the sovereignly from the people to their agents, making the agent lo be sovereign, and the former sovereisrn lo be the subject. On the contrary, every constitutional government announces lliat all powers are derived from the will of the people, and all powers not granted by the people are reserved. The agent cannot have more powers tlian the principal. The creature cannot be jrreater than the creator. Let us look at the ratifying part of the Constitution of the United States. It was proposed that when nine States should agree thai this instrument should bo part of their constitution, or organic law; then this general agent should be organized and fo into force. The Congress of the old confederation, whom this new plan proposed to supplant, were friendly to the submission of the new plan; but mark the logic, — the plan provided for the extinction of the old confederation by secession. The Congress favored it. and the Conventions of the Stales were called lo consider the secession from the Confederation and the adoption of the new constitution. Nine States peacefully seceded in 1787 and 1788. Two States — Rhode Island and North Carolina — lingered a year and a half before they joined the new Confederation: North Carolina not joining until satisfactory amendments were made to the Constitution, and Rhode Island joining upon conditions.

Notwithstanding the 12th article of confederation says, the articles shall be inviolably preserved and the Union be perpetual, and no alteration shall be hereafter iiiiule unless it be continued by the Legislature ofevery State, yet there has never been a question that the States could not rightfully secede from the old Confederation, although its articles of constitution were entitled "articles of confederation and perpetual union," and in the new-Constitution as amended, the words, reserving to the Slates all powers not granted, are as clear as in the Articles of Confederation (see Art. 1(1) : "The powers not delegated to the United States by the Constitution, nor prohibited by it to the Stales, are reserved to the States respt-clively, or to the people." It follows, then, that if secession was no offence in 1788 against the old Confederation, unless words granting away the right to secede are found in the new Constitution, or words prohibit inir secession to the States, then the ritfhl is reserved intact by ihe several States. We lind no such grant nor such prohibition. The rinlil of secession remains a purl of Ihe sovereignty of the respective Stales, just as perfectly as when they last exercised


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■Vit in 1788-9 in order to adopt this present Constitution. It is nowhere mnde an ^oH'ence iijriiinst the new goveriinient for the State lo resume its delcfriiled puwers. <? Whilst she is in tiie Union the delegation ot" powers is good against lier, because "^ the theory otllie Union is the (lelegatiii^c the same power> hy each Sialelo theone C,^ general agent. It is iheeqnaliiy of rights and equality of oiiligalions that makes the base and substance of the Union — and the Act of each Stale in her sover- •■.eighty makes the Supreme Court of ihe U^niled Stales the ludge of all questions

  • ■' arising under that grant of jiowers, but not on other sul)jects. Finding, then,

neither grant by the Slates, nor prohibition lo them, of their sovereitin power to secede, and having shown that when t'alled on to ratify this Convention they were asked to do it l)y the act of secession from the existing one — it may well be deemed, this power reniains in the people of the State, unless we find some neces- sary implication of an inconsi.-tent nature arising elsewhere in the Constitution: such as a grant of power to coerce a Slate when negligent of her oblii:alions un- der the Constitution. Is there any such grant ? None appears — powers ovpr individinils appear. The judges of a State are commanded to obedience to the decisions of Ihe Supreme Court, but there are no words commanding the legisla- tures of the several States. Those hoi. ling the executive power of the States in the Union may. |ierhaps, be reached directly through the juiliciary as individuals, (as Congress has attempted in the la.-t Consular act on the subject ol' granting- passports) but no implication as to the States in their sovereignly is lo be discov- ered. Congress, even, is only authorized to make laws for executins' the powers granted to itself and those vested in the Government by this Constitniion. or in any department or olllcer thereof This subject may be still more conclusively set at rest by referring to the joitrnals of the Convention that formed the Consti- tution.

We find there that Mr. Edmund Ran(lol|)h"s programme, included a power to coerce Stat-;s who were negligent of their duties or engagements, but that the Convention steadfastly resisteil and rejected the graiitintr of such a power lo the General Government. It was not incorporated in the Constitniion when sub- mitted to the States for their approval. This is not all. So jealous were the several States, lest this power afterwards might be assumed by construction, that only six States ratified the Constitution unconditionally. Six other States attached conditions lo iheir raiilicatlon, either directly as conditions, or else by declaring the construction of the Constitniion on which they ratilied it, and in- sisting that this construction should be made more clear by amendmeni.s and ex[ilieii declarations. One State. North Carolina, refused to give even a condi- tional ratiticaiion, before the amendments were made. The leadinsr condition of consirnciion thus made imperative by the concordant action of the States form- ing the Union, was immediately afterwards substantially adopted as an amend- ment, being art;cle 10th: that the powers not delegated lo the United Slates by the Constitution, nor prohibited by it to the States, are reserved to the Slates respectively or to the people." The Stales who insisted on thus "making assur- ance doubly sure,'" with regard to the limits of the delegation of powers, were South (,'arolina. New York, Viririiiia, Massachusetts, New Hampshire and Rhode Island, with whom North Carolina stood. (Vide Ellioll's Debates on the Federal Constitution. Vol. 4. Katiticalion of the Stales.) The power lo coerce cannot then be derived from any just implication, and was refused to be incorporated originally in the Constitution. The Slates who formed this Union stood after it was, both by their condilional raliiication and by the amendment article 10, adopted and put into existence as a general governmerl. exactly as they stood in relation to the old confederation, when they declared. July fiih, 17*8. that their style sluiuld be the United Stales of America, and tliat '• Eacii Stale retains its sovereignly, freedom, independence, and every power, jurisdiction and right, which is not by this conlederaiion expressly delegated lo the United Slates." so far as theii reserved rights were concerned. Coming, then, to a closer considera- tion of the objects of the'Union of these United Slates, and of the delegation ol powers lo eflect those objects, we find that the recitals of the objects of the "per- petual union" establislied in 1777, coincide i)erleclly with the objects of the more perfect union" commenced in 17>>7, so far as each jirovides for the miilual and general welfire, common defence and security of their liberties. In llie Consti- tniion, we find "lo establish justice and insure domestic tranquility," added to the prior objects. It does not appear from the avowed objects of Ihe Union of the Stales, any more than from the grants of powers lo the General Government, or from the prohibition to the Slates to exercise certain acts of sovereign power whilst in the UnTon, that a prohibition of the authority to secede from the Union, or the power to coerce a Slate, were either of them included in the articles of the Conslitulion, or that any State has ever ratified to the United Stales these parts of her sovereign powers, or been even asiied to separate them from her sovereignty. And when we contemplate that the framers of the Constitution proposed the peaceful secession of nine Stales from the old Confederation to the new one, as tlie only means of starting or instituting this present general government, how can it be imagined that they looked with such horror on secession by act of the peo|)le, in State sovereignty, as to mark with eternal future re))ro- bation, the act they were then inviting the Slates to lake?

The people of one State surrendered no part of their sovereignty over their own State to other States. Whilst in the Union, the Constitution is iheir law, because it is their act. The general government has no sovereignly over any State of this Union. It is the agent of the States, having several powers from each; it can touch no subject not included in the powers granted to il by the States. We have seen that neither the |)retence of coercion nor the pretence of secession being prohibited to a State is supported by the record. The general government has no power to act in a case of secession. It concerns the Stales, in their sovereignly, and is beyond the limited sphere of the general government. Whom, then, does secession concern ? And is there any remedy or retribution? We answer that it concerns the oilier States, in that |)ortion of their sovereignty not delegated to the general government, nor even to the State legislatures. It concerns the sovereign people of each State in this Union, and them only. Congress has no powers to represent them. The people of the sovereign States have delegated no powei^s to any agent, State or general, to represent ihem. In their conventions alone can Ihey meet this issue, by either delegating powers to some agent or agencies equal to the. emergency ; or consider what other appropriate remedies, if any, are necessary. To the question, is there any retribution for secession? we say: not under the Constitution. But outside of the Constitution, is retribution to be sought? If the Stales feel justly offended because the seceding State has withdrawn from their alliance, they can treat her as a hostile neighbor, a nation with whom they have cause of war, and may follow her with all the means that the law of nations points out in cases of public war. lf they conquer her, they may make her a territory, or annex her as territory to some State of the Union. But from the moment of secession she has no rights in the sisterhood of States — no protection in the Constitution. She is alien p.-m1 stranger. Whether the States will resort to the harsh means of war, and rush into the discords of social evils sure to follow in the footsteps of such a war, or whether recognizing some justice in their grievances, peaceful means to mitigate by treaties the evils of disunion, or else by timely additional guarantees in the Constitution, to give full assurance of the equality and protection demanded in the Union, are questions of future policy for discussion in each State.