The Imaginary Secessionist: A Reply to Joe Sobran's Imaginary Abe, by Harry V. Jaffa, 11/13/2001.
"Joe Sobran is writing a book about Lincoln in which he will "argue that if there is a right of secession it follows that Lincoln had no authority to suppress secession by force." That is the one point upon which Sobran and I agree. If secession was a lawful right, then certainly Lincoln's action against the Confederacy was wrong. But if secession was not lawful, not authorized by the Constitution itself, then secession was indistinguishable from rebellion, and Lincoln, having taken an oath that the laws be faithfully executed, had both a right and a duty to suppress it.
In our dispute, everything turns upon whether or not secession, as a right to withdraw from the Union, without the consent of the Union, or of any other state, really can be considered a constitutional right. Whether or not secession can be considered a lawful right, depends in its turn upon whether the states can be considered individually sovereign. That in turn depends a priori upon whether, as Sobran asserts (following John C. Calhoun, Jefferson Davis, Willmoore Kendall, Mel Bradford, and Garry Wills) the thirteen states that declared their independence from Great Britain, on July 4, 1776, at the same time and by the same act, declared their independence from each other. This contention, that the original states were as separately sovereign from each other as from any foreign state, is the fundamental premise of the secessionist argument. Without it, everything else they say falls to the ground.
Sobran, following the long tradition going back to Calhoun, makes much of the fact that the Declaration ends by saying "That these United Colonies are, and of right ought to be free and independent states..." A free and independent state, says Sobran, means one that can either join or withdraw (i.e. secede) from a confederacy with other states. But Sobran does not quote the following, from the same sentence, viz., "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." In a review of Garry Wills' Inventing America, in which Wills makes the same point as Sobran, Edmund Morgan, Sterling Professor of American History at Yale, after quoting the foregoing passage of the Declaration, asks:
Which of these free and independent states undertook to do the acts and things that Jefferson specified as characteristics of a state? It was the Congress that levied war through the Continental Army; it was Congress that concluded peace through its appointed commissioners; and it was Congress that contracted the alliance with France. Congress may not have established commerce, but in the Association it had disestablished it, and in a resolution of the preceding April 6, it had opened American ports to all the world except England.
I think it is utterly absurd to think that the states that declared their independence from Great Britain imagined for a moment that they were declaring their independence from each other. As Benjamin Franklin remarked, if they didn't hang together they would hang separately. They had no chance of independence except by union, and they never thought that they were sovereign except by means of union. They were indeed sovereign, but only as joint and several participants in the sovereignty of the union they had formed.
If we look back at the political process by which the Congress reached the decision for independence, we find that the resolutions of the revolutionary colonial assemblies, by which their representatives in the Continental Congress were authorized and instructed, were resolution for both independence and union. New Hampshire for example instructed its delegate "to join with the other colonies in declaring the thirteen United Colonies a free and independent state..." No one apparently noticed, or thought it unusual, that New Hampshire referred to the thirteen states as one state! In all the resolutions for union however, each colony reserved to itself the exclusive jurisdiction of its "internal police," or "internal polity." In these resolutions one sees the origin of that division of sovereignty which became the hallmark of American federalism, a system of dual sovereignty which had never before been seen in the world. The world had seen powerful empires, and small republics. But it had never seen a system of government which combined the power of a great empire with the freedom associated heretofore only with small republics. All this was made possible by what Madison called a form of government "partly federal, partly national." Calhoun however denied that sovereignty was divisible: he said that like chastity it could not be surrendered in part. He would not admit that by the adoption of the Constitution the meaning of the word "federal" had changed. But he was wrong, and anyone who wants to know why should read Madison's strictures against Calhoun at the time of the nullification crisis. And Calhoun's followers, to this day, misunderstand the nature of sovereignty under the Constitution.
The dual federalism that reached maturity in the Constitution of 1787 had its origin, as we see, in the movement for independence itself, which was a movement for independence and union. This confirmed in the resolutions of Jefferson and Madison for the Board of Overseers of the Univeristy of Virginia in 1825, when they referred to the Declaration of Independence as "the act of Union of these states."
But the process by which sovereign powers were transferred to the government of the union was a difficult one, and was deeply involved in the struggle for ratification..."
To be continued...