New York

New York

Michael T. Griffith

2006

@All Rights Reserved

Fourth Edition

That the powers of government may be resumed by the people, whensoever it shall become necessary to their happiness: that every power, jurisdiction and right, which is not, by said Constitution, clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several States, or to their respective State Governments.

Rhode Island:

That the powers of government may be resumed by the people whensoever it shall become necessary to their happiness.

Virginia:

That the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury and oppression.

There can be little doubt about the intent of these provisions. They were clearly meant to serve notice that the people of each of those states reserved the right for their state to resume the powers of government on their behalf. If the people of those states had this right, it stands to reason that the people of all the states had this right. Notice that New York's ordinance implied this right belonged to the people "of the several states, or to their respective state governments."

Logically, if "every power, jurisdiction, and right" not expressly delegated to the federal government was to remain with "the people of the several states," or with "their respective state governments," then naturally the people's expressed right to resume the powers of government would be exercised by the people through "their respective state governments."

The people of the Southern states chose to exercise this right. They voted for secession in overwhelming numbers, either in elections for representatives to state conventions or in referendums, and as a result their respective states seceded. McPherson himself acknowledges that the secession process was democratic, and in fact that it closely resembled the process by which the original thirteen states ratified the Constitution (pp. 234-239, 276-283).

Virginia cited the right to resume the powers of government in its ordinance of secession:

The people of Virginia in their ratification of the Constitution of the United States of America, adopted by them in convention on the twenty-fifth day of June, in the year of our Lord one thousand seven hundred and eighty-eight . . . declared that the powers granted under said Constitution were derived from the people of the United States and might be resumed whensoever the same should be perverted to their injury and oppression. . . .

8. The thirteen states that ratified the Constitution existed as sovereign entities before the Union came into existence, and even before the Declaration of Independence was written. McPherson uncritically quotes Lincoln's dubious arguments against secession, which included the assertions that the Union was older than the states and that no state (except Texas) had ever existed as a state outside the Union::

"The Union is older than any of the States," Lincoln asserted, "and, in fact, created them as states." The Declaration of Independence transformed the "United Colonies" into the United States; without this union then, there would never have been any "free and independent States." "Having never been States, either in substance, or in name, outside the Union," asked Lincoln, "whence this magical omnipotence of 'State rights,' asserting a claim of power to lawfully destroy the Union itself?" (p. 247, original emphasis)

Historians John Garraty and Robert McCaughey point out that the thirteen colonies broke from England and created their own constitutions even before the Declaration of Independence was written:

However crucial the role of Congress, in an important sense the real revolution occurred when the individual colonies broke the official ties with Great Britain. Using their colonial charters as a basis, the states began new constitutions even before the Declaration of Independence. (Garraty and McCaughey, The American Nation: A History of the United States to 1877, New York: Harper & Row Publishers, 1987, p. 135)

Historians Alan Brinkley, Richard Current, Frank Freidel, and T. Harry Williams:

The formation of state governments began early in 1776, even before the adoption of the Declaration of Independence. . .

Two of the original thirteen states saw no need to produce new constitutions. Connecticut and Rhode Island already had corporate charters which provided them with governments that were republican in all but name; they simply deleted references to England and the king from their charters and adopted them as constitutions. (Brinkley et al, American History: A Survey, Eighth Edition, New York: McGraw-Hill, Inc., 1991, p. 150)

Concerning Lincoln's legal arguments against secession, attorney James Ostrowski says,

Lincoln challenges the claim of reserved state powers by asserting that no state, except Texas, had ever "been a State out of the Union." Lincoln argues that the states "passed into the Union" even before 1776; united to declare their independence in 1776; declared a "perpetual" union in the Articles of Confederation two years later; and finally created the present Union by ratifying the Constitution in 1788. There are many problems with his argument.

Lincoln confuses no fewer than four different concepts of "union." Prior to July 4, 1776, the colonies were united by their increasing concern over the violation of their rights by the British government. Their representatives met in a Continental Congress which ultimately issued the Declaration of Independence and organized the Revolutionary War effort. Prior to 1776, no issue of secession from a union could have arisen because the colonies still considered themselves part of Great Britain. Neither was there any legal document agreed to by the Continental Congress which directly or indirectly addressed the issue of secession. Thus, the "union" that existed prior to 1776 is of no importance at all to the issue of secession.

Next comes the union created by the Declaration of Independence. The most notable fact in this context is that the Declaration announces a lawful secession by the colonies from Great Britain based on the right of the people to alter or abolish their form of government. It is thus apparent that the Declaration of Independence establishes that the right of secession is among the inalienable rights of men. The Declaration is therefore literally the last place on earth one would hope to find legal justification for a war against secession. It was adopted by representatives of the thirteen colonies and declared that those colonies had become "Free and Independent States." The Declaration was not, however, a constitution, establishing a particular type of union among the states, or specifying any duties binding on them other than a moral commitment to mutually defend their newly declared independence. (Ostrowski, "An Analysis of President Lincoln's Legal Arguments Against Secession," paper delivered at the "Secession, State, and Economy" conference sponsored by the Mises Institute and held at the College of Charleston, Charleston, South Carolina, April 7-9, 1995)