Legal discussion of state sovereignty and powers

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Feb 28, 2018
I hope that this forum is open to discussion of actual laws regarding secession.
I'd like to begin with a clarification of legal terms; i.e. that there are two different types of “sovereign state” under international law:

1) internationally sovereign states, aka “nation-states,” which are independently and supremely self-ruling; and

2) domestically sovereign states, which are subordinate to a larger nation-state.

Sovereign nation-states are also known by the term “sovereign nations,” such as Great Britain, France, Italy, or Japan etc. Meanwhile, domestically sovereign states, would be like the states of the national republic of Brazil, otherwise known as "federated units" like Rio.

While Unionists and “conventional wisdom,” both claim that the American states are of the latter persuasion, there can be no question that each state was always individually internationally sovereign, from its point of existence; meanwhile every “union” between them was likewise wholly international, as by treaty etc. between any two sovereign nations today. And so, the USA, in its various forms, would only be voluntary international associations of separate nations, like the EU or the UN; and therefore secession would be liek Brexit.

As James Madison noted, in his January 1800 Report on the Virginia Resolutions:

It is indeed true that the term "states" is sometimes used in a vague sense, and sometimes in different senses, according to the subject to which it is applied. Thus it sometimes means the separate sections of territory occupied by the political societies within each; sometimes the particular governments established by those societies; sometimes those societies as organized into those particular governments; and lastly, it means the people composing those political societies, in their highest sovereign capacity. Although it might be wished that the perfection of language admitted less diversity in the signification of the same words, yet little inconvenience is produced by it, where the true sense can be collected with certainty from the different applications. In the present instance, whatever different construction of the term "states," in the resolution, may have been entertained, all will at least concur in that last mentioned; because in that sense the Constitution was submitted to the "states;" in that sense the "states" ratified it; and in that sense of the term "states," they are consequently parties to the compact from which the powers of the federal government result.

The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority, of the Constitution, that it rests on this legitimate and solid foundation. The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.

Hence we see firsthand the context of the Constitution, by the Framers’ intent: i.e. a voluntary international association of separate sovereign nation-states, with each being “a People in their highest sovereign capacity—“ i.e. a separate, sovereign nation, like any member-state of the United Nations or European Union, or any other international association of sovereign nation-states.

Unionists meanwhile, cannot seem to agree on the precise legal theory, of how and when the USA allegedly “became a single nation-state” over the individual states. Some (e.g. Lincoln, Andrew Jackson, etc.) claimed that it was via the Declaration of Independence; meanwhile others (e.g. The Supreme Court in Texas v. White), allege that the Articles of Confederation united them as a single “perpetual” nation-state.

Still others, like Yale Constitutional-Law Prof. Akhil Reed Amar, concede that the states were separate, sovereign nation-states prior to the Constitution; but they argue that the Constitution united them as a single nation-state. Amar, in particularly, uses the following curious logic for why he alleges that the states were separate nations before the Constitution, but not after:

“In dramatic contrast to Article VII-- whose unanimity rule that no state can bind another confirms the sovereignty of each state prior to 1787--- Article V does not permit a single state convention to modify the federal Constitution for itself. Moreover, it makes clear that a state may be bound by a federal constitutional amendment even if that state votes against the amendment in a properly convened state convention. And this rule is flatly inconsistent with the idea that states remain sovereign after joining the Constitution, even if they were sovereign before joining it. Thus, ratification of the Constitution itself marked the moment when previously sovereign states gave up their sovereignty and legal independence.”

Of course, this shows a fundamental ignorance of basic international law-- by which sovereign nations can be legally “bound” by treaties or other laws, while yet remaining nationally sovereign. Indeed, while all laws seek to present a “bright line” in terms of understanding boundaries, national sovereignty is the brightest of all lines in any law; and thus, it is utterly absurd to simply infer that such lines can have summarily “disappeared” without express manifestation by the nations in question, merely by a claim of “inconsistency.”

However, this supposed “precedent” did not do so via implied language-- as Amar claims the Constitution did with the American states; but on the contrary, the language used is express and direct, as seen in this excerpt from the Treaty:

“That the two Kingdoms of Scotland and England, shall, upon the first Day of May next ensuing the Date hereof, and for ever after, be united into one Kingdom by the Name of Great-Britain”.

Here, the Treaty expressly and directly unites the two kingdoms into a single kingdom—rather than doing so indirectly, via implied language. This is for the simple reason, that a sovereign nation-state, by all logic, can only surrender or compromise its national sovereignty, by express action and intent; for a sovereign nation-state, by definition, is the highest authority over its own laws: and therefore, no higher authority exists over it, which can construe such intent from implied meanings of words within the law (as Amar does with the Constitution). Thus, an international compact, cannot be argued under contract-law-- which by definition, is subject to a higher lawful authority; meanwhile the Madison, Jefferson and others made abundantly clear even after the Constitution was ratified among the states, that the states were subject to no common judge between them, in the last resort.

Accordingly, while the Treaty of Union unites the two kingdoms as a single kingdom, or nation; since the Constitution contrarily contains no such express manifestations of intent to unite the states, as a single state; then the Constitition plainly can only have united them as a voluntary federal (i.e. international) republic of separate nation-states. Meanwhile the respective People (i.e. voters) of each respective nation-state, are the principal final authority therein, and simply delegated certain powers to (subordinate) state and federal government agents.

Of course, this is all in accordance with the context of the Constitution, such as the Federalist Papers: there, James Madison and the Federalist Party, assured Patrick Henry and the Anti-federalist, and the People of New York and other states that the Constitution would not unite the states as a single new nation-state, but that each state would be bound only by its own voluntary act of its respective People-- not its legislatures. As expressed in Federalist No. 39,

“That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a MAJORITY of the people of the Union, nor from that of a MAJORITY of the States. It must result from the UNANIMOUS assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves.”

However again, this is simply contextual evidence, not primary law. The Constitution’s Framers, after all, were not the actual parties to the Constitutional compact; rather they were simply the lawyers and other subordinate agents who drafted the Constitution, as an agreement among the parties to it-- who were, as noted in the first three words of the Preamble, the respective Peoples, of each of the nine or more requisite states, that would prospectively ordain and establish the Constitution among their respective nation-states. Therefore, it is only their respective understanding and intent, that conclusively determines the Constitution’s meaning and effect.

And the People of each state, never expressly authorized or indicated, that their respective nation-states, would be united to form a single new nation state among them.

Note that this is in stark contrast to the manner in which the kingdoms of England and Scotland, were united by the 1707 Treaty of Union to form the single new kingdom of Great Britain, as a new nation-state formed out of two separate nation-states. (In fact, they were actually re-united by this Treaty; since here, the background-context shows that they were only separated by mistake some 100 years earlier, and thus they had been attempting to re-unite as a single kingdom ever since).

Meanwhile, the American nation-states obviously sought to separate from Great Britain in 1776, as thirteen separate nation-states, not one singular nation-state, as Lincoln, Jackson etc. claimed. This plurality, was due to the corruption of that centralized empire, which they obviously had no desire to repeat as a single nation-state, along with the concentration of power that enabled such corruption. (And this doesn’t even address the democratic political philosophy expressed in the Declaration of Independence: i.e. regarding “government by consent of the governed,” that was realized and embodied in the Constitution’s adoption by the People of each state, as per “the right of the People to alter or abolish their government.”

Accordingly, the People(s) of each state sought to unite their nation-states, only as an international federal republic among sovereign nations-- after the model described by Emerich de Vatel in the Law of Nations: Book I, Chapter I, § 10. "Of states forming a federal republic:"

Finally, several sovereign and independent states may unite themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect state. They will together constitute a federal republic: their joint deliberations will not impair the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements.

This was clearly the template for the Articles of Confederation and Perpetual Union-- as noted the phrase "perpetual confederacy," which are both terms used, to define the type of Union it creates: i.e. a federal republic of sovereign nation-states, in which each state expressly retains its sovereignty, freedom and independence, and only delegates certain powers, jurisdictions and rights to the common (international) Congress among them:

I. The Stile of this Confederacy shall be"The United States of America.

II. Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

Thus this 1781 union of nation-states, simply formed a “perpetual confederacy” of separate free, sovereign and independent nation-states; that merely delegated certain powers, jurisdictions and rights to that confederacy-- each while remaining a separate nation-state.

And this followed from the Declaration of Independence, which expressly declared the individual colonies to be separate nation-states-- not a singular, collective nation-state, as Lincoln claimed:

“We, therefore, the representatives of the United States of America, in General Congress assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name and by the authority of the good people of these colonies solemnly publish and declare, That these United Colonies are, and of right ought to be, FREE AND INDEPENDENT STATES; that they are absolved from all allegiance to the British crown and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved; and that, as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things which independent states may of right do.

This “full power to levy war, conclude peace, contract alliances, establish commerce, and do all the other things that free and independent states May by right do," only defines separate sovereign nation-states.

As mentioned above, such nation-sates are to be differentiated from mere domestically “sovereign states,” which are subordinate to a larger nation-state—as with the states of the national federal republic of Brazil, that have only arbitrary, limited “sovereignty,” subject to the final national authority of the central government. Unionists claim that American states exist in this manner; but in reality the USA was not a national federal republic like Brazil, but international as per Vattel’s dsecription; and thus the American states were internationally sovereign (vs. domestically sovereign). So under this usage, each state was a “perfect state—“ i.e. a separate nation-state; and the Articles of Confederation simply "put some restraint on the exercise of it, in virtue of voluntary engagements."

Thus we see that this "Perpetual Union" was a voluntary Confederacy of nation-states—and so was the Constitutional union formed after it, with the exception that was formed directly by the respective Peoples of each of the individual states, vs. doing so through their Congressional delegates; i.e. the respective Peoples of each state, unilaterally seceded their respective state from the Articles of Confederation, each doing so by the national authority of power as the supreme rulers of sovereign nation-states. This was further explained by James Madison in Federalist No. 40:

“In one particular it is admitted that the convention have departed from the tenor of their commission. Instead of reporting a plan requiring the confirmation OF THE LEGISLATURES OF ALL THE STATES, they have reported a plan which is to be confirmed by the PEOPLE, and may be carried into effect by NINE STATES ONLY. It is worthy of remark that this objection, though the most plausible, has been the least urged in the publications which have swarmed against the convention. The forbearance can only have proceeded from an irresistible conviction of the absurdity of subjecting the fate of twelve States to the perverseness or corruption of a thirteenth; from the example of inflexible opposition given by a MAJORITY of one sixtieth of the people of America to a measure approved and called for by the voice of twelve States, comprising fifty-nine sixtieths of the people an example still fresh in the memory and indignation of every citizen who has felt for the wounded honor and prosperity of his country. As this objection, therefore, has been in a manner waived by those who have criticised the powers of the convention, I dismiss it without further observation.”

Thus, just as the states did not unite under the Constitution to form a single nation-state, they likewise seceded from the “perpetual union” known as “United States of America” to form a new union under the Constitution, under which they once again remained sovereign nation-states.

Here, it bears mention that while the states each expressly retained their sovereignty, freedom and independence in the Articles of Confederation in 1781, this express retention is notably missing from the Constitution. The reason for this is plain, in that by the time of the Constitution in 1787, their national sovereignty was no longer simply declared, but official under the Treaty of Paris in 1783, which expressed the following:

“His Britannic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states, that he treats with them as such, and for himself, his heirs, and successors, relinquishes all claims to the government, propriety, and territorial rights of the same and every part thereof.”

This Treaty established each of the 13 colonies, as an official new separate nation-state unto itself, under international law: i.e. by the unchallenged recognition of such by several existing nation-states. Accordingly, there was no longer any need to expressly retain each state’s respective independent national sovereignty in 1787--again for the simple reason that it was no longer simply declared, but official.

Meanwhile the Treaties of Velasco did the same for Texas, while the recognition of the existing 13+ states likewise recognized the newer states that came into the Union after that.

Accordingly, each state was nationally sovereign, and was fully within its legal authority to secede from the U.S. Constitution, in order to ratify another, just like they seceded from the Articles of Confederation in 1787-9: i.e. each by the will of its respective voters.

Therefore, it seems that the Lincoln-government and northern states were entirely mistaken in their legal bases for claiming national authority over the individual states.
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Fewer ads. Lots of American Civil War content!
Fewer ads. Lots of American Civil War content!
Fewer ads. Lots of American Civil War content!
Fewer ads. Lots of American Civil War content!
Fewer ads. Lots of American Civil War content!
Fewer ads. Lots of American Civil War content!
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