Let us begin with looking at what it means to be a free and self-determined people.
The Concept of Secession in Early America
The Declaration of Independence, by the thirteen colonies which went on to became the first, united, states of America , was more than a notice of secession. It was a rebuke of colonial title and subject status, with the formal dissolution of the recognition of such a relationship. While it could be argued that the colonies had no such right to do so, the founding fathers heralded the values of freedom, liberty, and self-determination as being the basis of such right.
“We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that amongst these are life, liberty, and the pursuit of happiness; that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive to these ends, it is the right of the people to alter, or abolish it.” - Declaration of Independence
Having just freed themselves from tyranny in a hard-won military contest, it is hard to imagine that the founding fathers would have done much to make such action illegal, or to restrict the recognition of sovereignty they had just achieved at so high a cost. Secession from the rule of monarchy was finally complete when King George III formally relinquished all authority over his former colonies by 1783.
“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.” -Article One, Paris Peace Treaty
Note that the King did not recognize a single State, or single sovereignty, but each one independently. Of course we know that the founding fathers did intend to bring unity to the thirteen former colonies with a federal form of government, but they were also quite wary of too much power being consolidated in some monolithic central government, too much akin to a monarchy. This is evident in the Second Amendment and the Tenth Amendment of the Constitution, where measures to check the power of the federal government were adopted.
“A well regulated militia being necessary to the security of a free State , the right of the People to keep and bear arms shall not be infringed.” -Second Amendment
Let us ignore the debate in modern times as to the right of the individual to keep and bear arms, and focus on the right of the State. It seems clear enough by the wording here that at the very least, it is the right, if not the duty of a free state , to secure their freedom as a state, with arms. Not as a franchise of the federal system, but as a free state . Sovereignty of the State is clearly expressed here. Who might we reasonably expect would pose a threat to the freedom of one State? Another State perhaps, but it seems far more reasonable that the threat envisioned by the authors of the Second Amendment was that of an oppressive central government. While they may have also envisioned the need for States to maintain a militia to be used in cooperation against a common foreign enemy, such a meaning was neither explicitly stated, nor clearly implied. In fact, New England states refused to send their quota of militia to fight the British in the War of 1812, and even went so far as to threaten secession at the Hartford Convention, even creating a new flag. Also, there was then, the possibility of an outright Federal military, which we now have today, though this was frowned upon at the time, again out of fears of a strong central government.
As stated without ambiguity, the Second Amendment clearly was meant to protect the security and freedom of an individual and sovereign State. It truly does speak for itself, as does the Tenth Amendment.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”-Tenth Amendment
There are those who may argue that by ratifying the Constitution, the States dissolved their right to secede from the federal union, as a part of their obligation to that union and to the other States. But if that union were to infringe upon the sovereign rights of any State, by availing itself of powers not delegated to it by the Constitution, would not the obligation by the State to the union then be dissolved, as the original agreement had been already violated? Would not the usurpation of power by any one district, or by the Federal government, be considered an act of aggression, and a clear affront to the liberty of the State?
Speaking on the outright banning of the right to secede, James Madison stated on May 31st in 1787:
Wikipedia-Sovereignty“A Union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State, would look more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.”
In an article published as a part of a compilation known as The Federalist, Alexander Hamilton concluded:
“When the sword is once drawn the passions of men observe no bounds of moderation. The suggestions of wounded pride, the instigations of resentment, would be apt to carry the States against which the arms of the Union were exerted, to any extreme to avenge the affront, or to avoid the disgrace of submission. The first war of this kind would probably terminate in a dissolution of the Union.”
During debate at the New York State Convention in Poughkeespie, Hamilton stated:
“To coerce a State would be one of the maddest projects ever devised. No State would ever suffer itself to be used as the instrument of coercing another.”
New York State , along with Virginia and Rhode Island , explicitly stated in writing that they maintained a natural right of secession, when they finally submitted ratification of the Constitution. Because this was considered to be a natural right of states, and because it was understood and agreed upon at the Constitutional Convention (being presided over by one George Washington, a delegate of Virginia), this would be a right of all states. By accepting the ratifications of these three states, and thereby validating them, the other states were guaranteed this right as well, as a matter of course, knowing that a right held by one state must be held by all. (There are a very few specific exceptions.) But really, there was little need to explicitly declare this in writing anyway, because it was indeed the right of the sovereign States already.
Speaking before Congress in December of 1860, President James Buchanan stated:
“The question fairly stated is, Has the Constitution delegated to Congress the power to coerce a State into submission which is attempting to withdraw or has actually withdrawn from the Confederacy? If answered in the affirmative, it must be on the principle that the power has been conferred upon Congress to declare and to make war against a State. After much serious reflection I have arrived at the conclusion that no such power has been delegated to Congress or to any other department of the Federal Government. It is manifest upon an inspection of the Constitution that this is not among the specific and enumerated powers granted to Congress, and it is equally apparent that its exercise is not necessary and proper for carrying into execution any one of these powers. So far from this power having been delegated to Congress, it was expressly refused by the Convention which framed the Constitution.”
Full text at infoplease.com
At this point we have a clear overview of some of wealth of material which is available to support the right and the authority of any one State to secede from the union of the United States of America . It has been said, that before the Civil War one would say “these are the United States.” Since then, it is said, “this is the United States.”
Secession of the Confederate States of America
The clearest mark for the beginning of the Confederacy is with the secession of South Carolina on the 20th of December in 1860.
“AN ORDINANCE to dissolve the union between the State of South Carolina and other States united with her under the compact entitled 'The Constitution of the United States of America.'We, the people of the State of South Carolina, in convention assembled, do declare and ordain, and it is hereby declared and ordained, That the ordinance adopted by us in convention on the twenty-third day of May, in the year of our Lord one thousand seven hundred and eighty-eight, whereby the Constitution of the United States of America was ratified, and also all acts and parts of acts of the General Assembly of this State ratifying amendments of the said Constitution, are hereby repealed; and that the union now subsisting between South Carolina and other States, under the name of the "United States of America," is hereby dissolved.Done at Charleston the twentieth day of December, in the year of our Lord one thousand eight hundred and sixty.” -Ordinances of Secession
Constitution.org-Ordinances of Secession
But this was not some sudden decision that was made lightly. In fact, it had been years in the making, as is apparent in the preamble of their “Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union.”
“The people of the State of South Carolina, in Convention assembled, on the 26th day of April, A.D., 1852, declared that the frequent violations of the Constitution of the United States, by the Federal Government, and its encroachments upon the reserved rights of the States, fully justified this State in then withdrawing from the Federal Union; but in deference to the opinions and wishes of the other slaveholding States, she forbore at that time to exercise this right.. Since that time, these encroachments have continued to increase, and further forbearance ceases to be a virtue.
And now the State of South Carolina having resumed her separate and equal place among nations, deems it due to herself, to the remaining United States of America , and to the nations of the world, that she should declare the immediate causes which have led to this act…” -Declarations of Causes of Seceding States
Of course, all of these words all came down to the actual withdrawal of their delegates from the Congress for the United States , which was reported as follows:
“Resignation of the South Carolina Delegation
The Speaker laid before the House on the 24th, a letter signed by Messrs. M'Queen, Bonham, Boyce, and Ashmore, of South Carolina , as follows:
SIR,- We avail ourselves of the earliest opportunity since the official communication of the intelligence, of making known to your honorable body that the people of the State of South Carolina, in their sovereign capacity, have resumed the powers heretofore delegated by them to the Federal Government of the United States, and have thereby dissolved our connection with the House of Representatives.. In taking leave of those with whom we have been associated in a common agency, we, as well as the people of our Commonwealth, desire to do so with a feeling of mutual regard and respect for each other- cherishing the hope that, in our future relations, we may better enjoy that peace and harmony essential to the happiness of a free and enlightened people.
JOHN M'QUEEN,M. L. BONHAM,W. W. BOYCE,J. D. ASHMORE.
To the Speaker of the House of Representatives. “-Harper’s Weekly (January 5, 1861)
We know that other states quickly followed suit, with their seemingly rightful reclamation of outright sovereignty, and dissolution of their ties to the federal government of the United States. Mississippi declared their ordinance on the 9th of January 1861, followed then by Florida, Alabama, Georgia, Louisiana, Texas, Virginia, Arkansas, North Carolina, Tennessee, Missouri, and finally then by a group of Kentuckians calling themselves “Convention of the People of Kentucky,” by November of 1861. It should be noted here, that the break from the Union was not entirely clear or precise in many areas. The legitimacy of the Confederate ordinance in Kentucky , for example, is greatly disputed, despite the state being represented as the center star of the Confederate Battle Flag. In another example, forty-eight northwestern counties of Virginia decided to secede from that state, and form their own West Virginia in 1863. It should also be noted here, that secession, up this point in American history, had never been declared illegal, nor ruled un-Constitutional by any body of government.
The End of Constitutional Government, and the Declaration of Martial Law
On the 27th of March in 1861 Congress adjourned “sin die,” or “without day,” no longer having the required quorum under the Constitution. In other words, having lost the delegates of the seceding states, Congress no longer had the minimum number of required persons to lawfully conduct any official business, except to set a date to reconvene, under Article One of the Constitution. They did not set a date to reconvene, and as a result many have argued that the Congress of the United States of America was thereby dissolved. There are also those who argue that only Congress itself would have the authority to dissolve the body permanently. I find the argument to be moot. The fact is, that the Congress of the United States of America has never reconvened “de jure,” or “by law.” Instead, they have operated by Proclamation of the President of the United States , as shown here, in what is often referred to as Executive Order One:
“BY THE PRESIDENT OF THE UNITED STATESA PROCLAMATION.
Whereas the laws of the United States have been for some time past, and now are opposed, and the execution thereof obstructed, in the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana and Texas, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the Marshals by law,
Now therefore, I, Abraham Lincoln, President of the United States, in virtue of the power in me vested by the Constitution, and the laws, have thought fit to call forth, and hereby do call forth, the militia of the several States of the Union, to the aggregate number of seventy-five thousand, in order to suppress said combinations, and to cause the laws to be duly executed. The details, for this object, will be immediately communicated to the State authorities through the War Department.
I appeal to all loyal citizens to favor, facilitate and aid this effort to maintain the honor, the integrity, and the existence of our National Union, and the perpetuity of popular government; and to redress wrongs already long enough endured.
I deem it proper to say that the first service assigned to the forces hereby called forth will probably be to re-possess the forts, places, and property which have been seized from the Union; and in every event, the utmost care will be observed, consistently with the objects aforesaid, to avoid any devastation, any destruction of, or interference with, property, or any disturbance of peaceful citizens in any part of the country.
And I hereby command the persons composing the combinations aforesaid to disperse, and retire peaceably to their respective abodes within twenty days from this date.
Deeming that the present condition of public affairs presents an extraordinary occasion, I do hereby, in virtue of the power in me vested by the Constitution, convene both Houses of Congress. Senators and Representatives are therefore summoned to assemble at their respective chambers, at 12 o'clock, noon, on Thursday, the fourth day of July, next, then and there to consider and determine, such measures, as, in their wisdom, the public safety, and interest may seem to demand.
In Witness Whereof I have hereunto set my hand, and caused the Seal of the United States to be affixed.Done at the city of Washington this fifteenth day of April in the year of our Lord One thousand, Eight hundred and Sixtyone, and of the Independence the United States the Eightyfifth.
By the President:WILLIAM H. SEWARD, Secretary of State.”
The American Presidency Project
As stated in this document, both houses of Congress were ordered to reconvene, by President Lincoln, without the quorum required by the Constitution. The order is dated two days after the surrender of Fort Sumter by Union forces, in South Carolina , and remains in effect to this day.
(The attack on Fort Sumter is often viewed as evidence of aggression on the part of the southerners, but there are a few points to consider here. Union forces had manned the Fort clandestinely, infuriating the Confederates. Nevertheless, they were politely asked now to abandon the Fort which was the key to control of Charleston Harbor . The Union Commander refused. Attempts to re-supply the Union garrison incensed the southerners even further. After all, these Union forces were now viewed as foreign occupiers of sovereign territory, and furthermore, as a threat to trade in the region. They certainly were not welcome there, and eventually, General P.G.T. Beauregard was authorized to forcefully remove the garrison operating under the command of his former artillery instructor, Major Robert Anderson, whom he had also served as an assistant after graduating from West Point . Though it is a little known fact, there were a number of forts that the Union was forced to relinquish to the Confederacy before this notorious battle that is seen as the official start of the Civil War.)
But there is more here, than just the nullification of the Constitution. There is the establishment of a new authority under the Commander-in-Chief, the establishment of martial law, which has replaced the Constitution as the legitimate authority in America.
“GENERAL ORDERS No. 100.WAR DEPT., ADJT. GENERAL'S OFFICE,Washington , April 24, 1863.
The following "Instructions for the Government of Armies of the United States in the Field," prepared by Francis Lieber, LL.D., and revised by a board of officers, of which Maj. Gen. E. A. Hitchcock is president, having been approved by the President of the United States , he commands that they be published for the information of all concerned.
By order of the Secretary of War:E. D. TOWNSEND,Assistant Adjutant-General.”
Here are the first three standing orders under Section I, “Martial law-Military jurisdiction-Military necessity-Retaliation.
“1. A place, district, or country occupied by an enemy stands, in consequence of the occupation, under the martial law of the invading or occupying army, whether any proclamation declaring martial law, or any public warning to the inhabitants, has been issued or not. Martial law is the immediate and direct effect and consequence of occupation or conquest.
The presence of a hostile army proclaims its martial law.
2. Martial law does not cease during the hostile occupation, except by special proclamation, ordered by the commander-in-chief, or by special mention in the treaty of peace concluding the war, when the occupation of a place or territory continues beyond the conclusion of peace as one of the conditions of the same.
3. Martial law in a hostile country consists in the suspension by the occupying military authority of the criminal and civil law, and of the domestic administration and government in the occupied place or territory, and in the substitution of military rule and force for the same, as well as in the dictation of general laws, as far as military necessity requires this suspension, substitution, or dictation.
The commander of the forces may proclaim that the administration of all civil and penal law shall continue either wholly or in part, as in times of peace, unless otherwise ordered by the military authority.” -General Orders No. 100
(Here is a link to another source for the document, which is also known as The Lieber Code of 1863.)
So we see here, that martial law does not even have to be declared, to be in effect as the legal authority. Furthermore, we see that only the commander-in-chief has the authority to issue a “special proclamation” which would end the condition of martial law. It is certainly interesting that President Lincoln was assassinated before any such proclamation could be made, or Constitutional authority restored.
We also see that an end to martial law might be brought about by “special mention” in the conclusion of a peace treaty. Here it is also interesting to note that, despite the surrender of General Lee at the Appomattox Courthouse, and the surrender of other top commanders of Confederate forces in the months that followed, no peace treaty was ever signed with the Confederacy. Therefore, though the Confederates were beaten militarily, the war has never ended for the Secessionists. At the same time, the Union never officially recognized that the Confederacy even existed, that the fight had merely been to put down a domestic insurrection, and in a sense, that war with a Confederacy had never really happened at all. Some have argued that with the fall of Richmond , the Confederacy no longer existed and therefore had not the means to surrender, with the leadership dispersed, but the truth is that the Union never recognized the existence of the Confederacy to begin with and therefore could not accept surrender from that which they had never recognized. If they had accepted surrender, then they would have recognized the Confederacy as a legitimate entity to be negotiated with, thereby dooming the legitimacy of Union action against the Confederacy.
The third order, which I have listed here above, would come to be reflected in official acts in the years which followed the Civil War.
With the surrender of General Robert E. Lee and his Army of Northern Virginia, the Confederacy was effectively defeated militarily on April 9, 1865. It wasn’t a week later that President Abraham Lincoln was assassinated. The assassin made certain that Lincoln would have no part of cleaning up the mess that had been made by the war, no part of the period known as “Reconstruction,” and no chance to reverse the dictatorial assaults he had made against the Constitution, sovereignty, and liberty. Given the gravity of the situation, I dare say that there was far more behind the assassination than we are generally led to believe. It is more than likely, that there were those who desired that this consolidation of power remain in place long after the fighting had ceased. Was this assassination some cunning maneuver by a hidden cabal already in position to seize upon such new powers, or had this really been the root cause of the entire Civil War all along? Was the assassination the coup de grâce of the evident coup d’état? It seems quite likely that it had all been deliberately and clandestinely orchestrated, especially given all that has followed.
At the close of the Constitutional Convention in Philadelphia on September 18, 1787, a Mrs. Powel anxiously awaited the results, and as Benjamin Franklin emerged from the long task now finished, asked him directly:
"Well Doctor, what have we got, a republic or a monarchy?"
"A republic if you can keep it" responded Franklin.
The Reconstruction Acts that came after the war are a clear example of the continuation of martial law, and not Constitutional law. When Congress convened after a long recess in December 1865, they would not seat the representatives of the Southern states, refusing to recognize the legitimacy of their governments. Eventually, the Acts turned the former Confederate States of Virginia , North Carolina , South Carolina , Georgia , Mississippi , Alabama , Louisiana , Florida , Texas and Arkansas into five military districts to be commanded by Army Generals. Republican governments were eventually forced upon the defeated Confederacy, made up of “carpetbaggers,” “scalawags,” and of course “freedmen” instead of the traditional Democrats. While the eventual goal was indeed to restore States’ legislatures and representation in Congress, the Army was given unprecedented authority over all aspects of administration in the rebel states, including politics. An excellent example is found in Section 2 of a supplementary to "An Act to provide for the more efficient Government of the Rebel States."
“And be it further enacted, That the commander of any district named in said act shall have power, subject to the disapproval of the General of the army of the United States, and to have effect till disapproved, whenever in the opinion of such commander the proper administration of said act shall require it, to suspend or remove from office, or from the performance of official duties and the exercise of official powers, any officer or person holding or exercising, or professing to hold or exercise, any civil or military office or duty in such district under any power, election, appointment or authority derived from, or granted by, or claimed under, any so-called State or the government thereof, or any municipal or other division thereof, and upon such suspension or removal such commander, subject to the disapproval of the General as aforesaid, shall have power to provide from time to time for the performance of the said duties of such officer or person so suspended or removed, by the detail of some competent officer or soldier of the army, or by the appointment of some other person, to perform the same, and to fill vacancies occasioned by death, resignation, or otherwise.” -Reconstruction Acts
The rebels would have to submit to much to earn their “entitlement” to be represented in Congress once again. One such concession would be to submit to oaths under certain conditions, with one poignant example being made clear in Section 6 of one supplementary act.
“And be it further enacted, That the true intent and meaning of the oath prescribed in said supplementary act is, (among other things,) that no person who has been a member of the legislature of any State, or who has held any executive or judicial office in any State, whether he has taken an oath to support the Constitution of the United Sates or not, and whether he was holding such office at the commencement of the rebellion, or had held it before, and who has afterwards engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof, is entitled to be registered or to vote; and the words "executive or judicial office in any State" in said oath mentioned shall be construed to include all civil offices created by law for the administration of any general law of a State, or for the administration of justice.” -Reconstruction Acts
This effectively barred anyone who had any significant affiliation with the Confederacy or the Democrats from participating in government.
The states would have to write new constitutions in accordance with that which was prescribed in the initial Reconstruction Act. That constitution would then have to be submitted for the approval of Congress. But even here the imposition of federal authority does not end. Another clause, in the initial Act, which dictates the path back to representation in Congress, is stated in part in Section 5:
“…and when said State, by a vote of its legislature elected under said constitution, shall have adopted the amendment to the Constitution of the United States, proposed by the Thirty-ninth Congress, and known as article fourteen, and when such article shall have become a part of the Constitution of the United States, said State shall be declared entitled to representation in Congress, and senators and representatives shall be admitted there from on their taking the oath prescribed by law…”-Reconstruction Acts
Entitlement, though admittedly of slightly different meaning perhaps, had been expressly forbidden by the original 13th Amendment to the Constitution, which has now been left out of all modern renderings, and all but forgotten being another casualty of this new imposed order. How can one be “entitled” to rights that were once deemed to be “self-evident” by the founders? And what good is a vote, when you are given but one choice?
With what today is known as the 13th and 14th Amendments, and the District of Columbia Organic Act of 1871, the United States was well on its way to fully establishing itself as a corporation acting under an Executive dictatorship enforced by martial law. The establishment of the Federal Reserve Bank, the bankruptcy of the United States in 1933, and the Patriot Act, are all milestones, among others, in the road to absolute dictatorship, and the end of the dream laid out by our forefathers in the Declaration of Independence and the Constitution.. The United States today is a corporation, not the sovereign republic that it is imagined to be. According to the US Code Collection, sourced here from the Cornell University Law School, Legal Information Institute:
Law.cornell.edu“(15) “ United States ” means—(A) a Federal corporation;(B) an agency, department, commission, board, or other entity of the United States ; or(C) an instrumentality of the United States .”-TITLE 28 > PART VI > CHAPTER 176 > SUBCHAPTER A > § 3002
It might be argued that President Lincoln was within his Constitutional rights to do whatever he deemed necessary, as the Executive and Commander-in-Chief during a time of national emergency. No such power is stated in the Constitution however, and again I would refer to the Tenth Amendment. Regardless, it is clear that the Constitution has been effectively suspended and superseded since the Civil War, having never been restored to its natural state since that time. All that has followed could only truthfully be thought of, at best, as a Constitutional Dictatorship, with the Constitution cited merely as a reference and not acting as a binding or effective force of legitimate governance. Martial law, is the law.
Copyright 2010, all rights reserved, used by permission