The Consent of the Governed
(I posted this on another site and many people showed interest and enjoyed discussing it)
The question at the root of many "Civil War" (I object to that term, but I use it here for clarity) debates is the legitimacy of secession itself.
I have had the question posed to me asking for my opinions as to the primary reasons for the Southern secession of 1860. I am willing to discuss that, however- in the interest of taking things in order, I am desirous of addressing what I consider the "consent of the governed" issue first. There were many reasons why the States that seceded voted to do so- my repeating the debates that took place in the Capitols of those States might tend to stretch on longer than this article calls for. Suffice to say that the people alive at the time felt they had the right and duty to do so, for their own long list of reasons. The reasons that are important to me are topics for another day.
Before we ask "why" the states chose to secede, I would like us to clear up whether secession is right in and of itself. Most people who study this subject run across that question before long, and if their answer is that the States should never have tried to secede because it was illegal or immoral... the rest of your study will be seen through those eyes.
First, let me mention that the South was not at all unique in it's secession. Many countries have been formed so. For example, Ireland seceded from the British empire; Norway seceded from Sweden; Texas seceded from Mexico; Portugal seceded from Spain (they had to fight FOUR "civil wars" to succeed at that one); Panama seceded from Columbia... the list goes on1. The point is, secession is one of the ways countries are formed. Sometimes it happens without military engagement- more often it happens by bloodshed. The fact that a country has to go to war to earn their independence does not indicate that their cause is not just. America had to effect an "armed rebellion" in order to gain our independence in the late eighteenth century. I think few Americans debate the justice of that cause, but rarely stop to think that the Confederacy attempted to accomplish the same essential thing- the withdrawal of the consent of the governed. We were, in fact overcome in the field by a formidable and respectable foe after a long and arduous engagement. My assertion is essentially that the only proof that provides us with is that the Union had superior numbers and ordnance from which to draw. Anyone looking at the length of time it took and the numbers on both sides that fell will concede that we put up a fight to remember, and did so while outnumbered and outgunned. Again, though, the topic is not who won- that has been historically established. There is, however, an issue I feel must be discussed so that other points of debate may be built upon that foundation. I am urging those interested to question- whether we had the right to secede at all.
To me, it boils down to one concept: Does the government get its powers by the consent of the governed?
If so, then how could the very people who give that government it's power not have the right to withdraw from that nation?
That has been the question many "revolutionaries" have put forth over the years. As many of you know, the Civil War began at 4:30 a.m. on the 12th of April, 1861 when General Beauregard (of Louisiana) ordered his men to open up at Fort Sumter. We drew first, I agree. We were eventually beaten, I agree. Point of fact (for you non-history-buff types), the Confederacy was already established before the war begun. There were those, among them Secretary of State Toombs, who avidly disagreed with launching the attack, saying that we would be "striking a hornet's nest that extends from mountain to ocean." He felt it was unnecessary and put us in the wrong. Many people today still feel the same way. There were others that felt that the war was coming no matter what happened, and that it was best to have the time and place of engagement be of our choosing, since our foe outnumbered us and had more troops at his disposal. Additionally, Virginian leaders had said that we would need to "strike a blow" if we would have them join us. There were many who felt that the attack was necessary. In the interest of thwarting endless debates, I shall put forth for the sake of argument that we should have found another way. I am not a whole-hearted believer in that statement, to be honest, but I am conceding that point for now so that we may move on the more central issues. My assertion is that- regardless of who struck the first blow- the right to secede is as moral and inherent as the right to keep and bear arms.
As the thread title indicates, the question before us is: If the people who make up a nation concur that the government no longer is representative of them but rather imperialistic, do they not have they right, nay duty, to withdraw their consent and therefore their citizenry from that nation?
Another user made the following points:
Let's start with the original agreement: When the South (and everyone else) signed up for this new nation, they entered into "Articles of Confederation and perpetual Union", and "this confederacy shall be the United States of America". Under these articles, the states were specifically sovereign.
Of course, these workings didn't do well, and so "We the People of the United States, in order to form a more perfect Union..." revised things into an improved system--but not a completely new one. The USC, though, saw the states giving up their sovereignty, and establishing the Constitution as the supreme law of the land.
There was no death and disappearance of the thing birthed by the Articles of Confederation. The same states that entered into perpetual union in 1781 as the "United States of America" upgraded to a more perfect union in 1789. That perpetual union continues. The states, no longer sovereign, can't rightfully spin off into the CSA.
To make an analogy, the Southern states took marriage vows, twice, till death do us part.
Continuing the marriage analogy, though, there is a road open to divorce. Yes, just powers derive from the consent of the governed, and the governed have the right to alter or abolish the system. The more perfect system does have the mechanism for just that: the amendment process alters, and the Constitutional Convention can even go further and start from scratch.
The CSA, though, did not follow the proceedures[sic] to which they agreed. They entered into armed revolt. When--and only when--they fired on Federal troops on Federal land, the Federal government responded with military force.
To which I replied:
I do not speak (this evening) to legal technicalities. I strive to observe such every day, but there are two kinds of laws: Malum prohibitum and malum in se. Malum in se are laws that put into words actions that are inherently wrong. Malum prohibitum are crimes that are made so by statute. The critical view of my stance on this thread seems to be that secession was malum prohibitum (literal translation: "wrong because prohibited"). I contend that not only was it not so, but that it would not matter if it was, because something that is an inalienable right must always be defended.
The topic first at hand, again, is this:
Does the government get its powers by the consent of the governed?
If so, then how could the very people who give that government it's power *not* have the right to withdraw from that nation?
It has been said that the unions entered into by the States before and after the Declaration of Independence contractually precluded their privilege to abrogate their ties to that union. (I believe the words used were "gave up their sovereignty with the supremacy clause of the USC.") This has never been the case, and indeed- entertaining such a concept is nothing less than an attack on our standing as free men. Lest any should think I hold this position alone, let us look to men who were alive at the time and privy to the motivations of the men who entered into the Constitutional Union.
I will draw from a textbook that was used at West Point- a Federal Academy, circa 1825. William Rawle's Views of the Constitution was used to teach Constitutional law at that time. Mr. Rawle was thirty years old when the Constitution was adopted, and the book in question was widely endorsed at the time by political journals such as the North American Review (in Boston). Here is an excerpt of Rawle's stance on secession:
"It depends on the state itself to retain or abolish the principle of representation, because it depends on itself whether it will continue a member of the Union. To deny this right would be inconsistent with the principle of which all our political systems are founded, which is, that the people have in all cases, a right to determine how they will be governed.
This right must be considered as an ingredient in the original composition of the general government, which, though not expressed, was mutually understood&"
William Rawle, A View of the Constitution (H.C. Carey and Lea, Philadelphia, PA: 1825), p. 296
Rawle was not at all alone in this view. Indeed, this is congruous with Jefferson's words in the Declaration of Independence. I know you have all read it, but let me quote a bit for clarity:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among 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 of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government&"
Rawle was simply restating a widely understood moral principle. The idea that the Articles of Confederation or the Constitution of the United States precluded the states sovereignty was not in the minds of the men who wrote those documents, based on the words of the men who were alive and privy to the political clime of the time. This is an idea put forth by those that hold that view themselves, and project it onto the men who framed those unions.
It has been put forth that the states entered into a "perpetual union" under the Articles of Confederation that was extended, that is made more perfect, under the Constitutional Union. These ideas are both erroneous. I can give you historical events that prove my stance. I am willing to do that, but- since it is late- I will wait until asked to do so. Putting the outcome of that debate aside momentarily, I will move on to the point that I would eventually come to in that regard.
Let us set aside the words of men passed, for a moment, brethren. I ask you, my countrymen- seek within yourselves. Our states have always been the direct representation of the people within them. If your state- that is to say, if the people of your state- agree within themselves that the government to which they have associated and submitted themselves is no longer serving them but rather seeking to dominate them; do they not have the inherent right 'endowed by their Creator' to secede from it's authority- regardless of the letters on any page. I ask you (and I ask this as one who respects and loves the law), can morality- the rights which we hold so dear- be legislated into or out of existence?
Allow me to put forth an analogy. Let us say that you vote for a certain group of politicians. Those politicians enact laws that say you cannot defend your family from attack. This law is contrary to the laws of God and good conscience- are you not bound to disobey it? I am mindful of Daniel and the Lion's den. I contend that never did the states abrogate their sovereignty. Yet, let us say for the sake of argument that they did. Does that mean that they are, in fact, no longer sovereign? Let me put the question to you in another way- under what circumstances do the People lose their inherent sovereignty? I stand and say under NO CIRCUMSTANCES. No law nor letter nor union can ever take away a right that is 'endowed by our Creator'.
Again, we have come full circle&
Does the government get its powers by the consent of the governed?
If so, then how could the very people who give that government it's power *not* have the right to withdraw from that nation?
I contend that yes, it does.
I further contend that they do have every right- under any circumstance- to so withdraw.
It is to this we must first agree in order to speak further from a foundation of understanding. If we cannot agree on this foundational issue, we will likely not agree on anything else of consequence.
God Bless and good night, my brethren. I pray my words take root in your souls.
