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September 26, 2000

Is the Union Older Than the States?


by Joseph Stromberg

ANOTHER EXERCISE IN ‘OLD TIMES THERE ARE NOT FORGOTTEN’?

I suppose someone might reasonably ask the importance and relevance, at this late date, of the above-named topic. Someone might also ask what such an issue is doing in a column said to be mainly about foreign policy and war. And "Someone," to quote Lonzo and Oscar, would be right.

My first defense is that politics is the continuation of war by other means – to reverse Clausewitz’s dictum. Politics is the low-intensity conflict which normally takes place within boundaries already fixed by prior conquest. States carry on wars against other states and wage peace, so to speak, against their subjects. The processes have a lot in common, which is why people necessarily take an interest in politics, if only in sheer self-defense.

My second defense is that my question is the same one that comes up at the founding – or more likely, sometime after the founding – of any confederation, federation, or alliance: Who, in the end, has the final say? It is nicer when these things can be worked out by appeals to precedent, documents, and so on, rather than by force. Those about to enter the maw of the European Union should sit up and take heed.

UNION-SAVERS’ GUILTY CONSCIENCE?

Evidently some misgivings still arise about the nature of the American union. Having "saved" it by force, the unionists – or their spiritual descendants – become unhappy when the moral and legal foundation of their famous victory is called into doubt. That’s old hat, they say, and has no meaning for us today. So Mr. Garry Wills in his recent book denouncing the long-standing American tradition of suspicion directed at government. It may indeed be "academic" to go over this ground, but the reaction of the neo-unionists when anyone does so, suggests an uneasiness for which it is hard to account. I don’t know why they don’t just rest their case on the Right of Conquest. It worked for William the Bastard and many other famous historical figures.

Oh wait! I do know why: we have a lot of idle talk and a couple of public documents which go on a bit about government by consent. As the Supremes admitted in Texas v. White (1869), had the union not been older than the states, Texas "must have become foreign, and her citizens foreigners. This war must have become a war for conquest and subjugation." (My emphasis.) A close call, for sure.

A CONSTITUTION SO LIVELY IT REWRITES ITSELF ANNUALLY

Fortunately, we have a Living Constitution, which according to those who speak for it from a High Place, can mean anything they need it to mean. Texas v. White is just one example of this linguistic turn. Once again I claim the Nine Delphi as the founders of deconstructionism.

Even so, it is amusing, sometimes, to try to get beyond or behind the creative writing of the union-savers and the Supremes to see what might be there. In this endeavor, nothing beats an old historical piece by Claude H. Van Tyne, "Sovereignty in the American Revolution: An Historical Sketch."1 His method is refreshing. Having discovered inconvenient facts, he presents them in unalloyed fashion, only attempting to bury their significance in Hegelian waffle at the end of his essay. He’s a very honest Northerner, indeed. His contemporary successors begin with Hegelian waffle and never let up.

Van Tyne examines the record from the first Continental Congress – before the outbreak of war with Britain – through the ratification of the Articles of Confederation. Nowhere does he find confirmation of the Wilson-Story-Lincoln theory of a new, single people made up of the people of the colonies in the aggregate. Instead, he finds a rough and inconsistent pattern of cooperation between thirteen revolutionary movements, coordinated loosely in the Continental Congress.

Proponents of the priority of the union make what they can of the Declaration of Independence, although the phrase "free and independent states" does not appear to help their case. The colonies’ delegations awaited instructions from home before voting for the declaration, and New York waited a while longer. Much is also made of Congress’s suggestion that the states organize new governments, as if this was the order of a superior power to lesser ones. Actually, several had already established new governments under new constitutions, effectively repudiating British authority before the Declaration had been voted on. Van Tyne writes: "but the advice cannot be twisted into a sovereign command, for the thing is to be done ‘during the continuance of the present dispute between Great Britain and the colonies.’ A body regarding itself as sovereign does not speak thus." 2

Van Tyne notes as well that the colonies – now calling themselves "states" – did in fact exercise powers appropriate to sovereign states. The separate military forces, the navies established by nine states, separate state diplomatic activities, and so on demonstrate this beyond contradiction.3 Virginia ratified the treaty of alliance with France separately and carried on an extensive diplomatic correspondence.

IS IT TIME TO ‘REVISE’ THE ARTICLES OF CONFEDERATION?

I have put together evidence for the separate sovereignty of the states elsewhere and shall not go over all that ground here.4 The several states claimed their sovereignty under the Articles of Confederation quite explicitly. The second constitution – under which, allegedly, we still live – is held by some to have abolished the sovereignty of the states. Van Tyne admits, however, that power was given the new government "with a grudging hand" and "in so dubious a manner, that men have disputed ever since as to whether a national state actually did then come into existence."5

Fortunately, in his view, the National Ideal only fully grasped by exceptional Hegelian heroes like James Wilson, Alexander Hamilton, and James Madison - the equals of "men like Bismarck in Germany or Cavour in Italy" – prevailed in time. Or was it by stealth? Anyway, by creating a general government empowered to reach individuals, the states "left themselves nothing but the right of revolution."6

That’s a bit gloomy, even for a Hegelian. But there is a glimmer of hope, if anyone wants one. Mr. Lincoln, the main-most union-saver himself, conceded that under the amendment power three fourths of the states could dissolve the union if it suited them to do so. He only denied that states could, individually, depart the fraternal bonds of the union. I think he was wrong in this, but his little side comment is very interesting.

As our European friends blithely march into the unknown social-democratic whatever-it-is of the EU, perhaps we could move in another direction. How about a convention to revise the Articles of Confederation? The last meeting of that kind exceeded its instructions. Look what happened. The amendment power sits there, beckoning to us with the moral force of a call to convene the Estates General.

Notes

  1. American Historical Review, 12,3 (April 1907), pp. 529-545.
  2. Ibid., p. 536.
  3. Ibid., pp. 539-542.
  4. Joseph R. Stromberg, "Republicanism, Federalism, and Secession in the South, 1790-1865" in David Gordon, ed., Secession, State, and Liberty (New Brunswick: Transaction Publishers, 1998), pp. 99-133.
  5. Van Tyne, p. 544.
  6. Ibid., pp. 545, 529.
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    Joseph R. Stromberg has been writing for libertarian publications since 1973, including The Individualist, Reason, the Journal of Libertarian Studies, Libertarian Review, and the Agorist Quarterly, and is completing a set of essays on America's wars. He was recently named the JoAnn B. Rothbard Historian in Residence at the Ludwig von Mises Institute. His column, "The Old Cause," appears alternating Fridays on Antiwar.com.

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