The Confederate Constitution of 1861, Part I

From the 2004 Abbeville Institute Summer School

You know, you should ask yourself, “Why is the Confederacy so important?” Not only from a historical perspective, but also prospectively, what is it about the Confederacy and the leaders of that time that should encourage not only us people with Southern sympathies, but all people who are interested in good government generally, to focus on that time? Now, when we read the debates of the framers of the Confederate Constitution, we don’t have an equivalent to Madison’s notes or Elliot’s Debates, but we do have the Congressional Globe, and there’s a lot of good information as to what their worldview was, what their mindset was, and what they were attempting to do by bringing the United States government to heel vis-a-vis the U.S. Constitution. They weren’t only concerned with the present, but also with the future, they were very, very much concerned about posterity and where this country was going and how their families and their societies were gonna function in the next several generations, and I’m gonna focus on that this morning. My second presentation will be more concerned with the Confederate Constitution specifically, but we live in very, very interesting times from a jurisprudential point of view. This morning I happened to be listening to NPR and Nina Totenberg was talking about a topic that we’re gonna be discussing today: The incorporation of international law into American jurisprudence, which essentially means that you’ll be governed not only by the elites on the Supreme Court, but by elites in courts around the world, specifically the European Court of Justice and the World Court located at the Hague. And you could ask yourself, “Well, what does this mean? What does it mean for me and my family?” Well, it means that we are very expeditiously moving towards a form of socialism, not only economic, but also a sort of egalitarian socialism when it comes to social policy.

I’m not making this up. If you were to read the various U.N. charters, the various protocols and other documents that judges rely on when they’re deciding international law and/or European Union law, it reads like a script out of something just a couple steps removed from Marxism. They’re talking about an equal distribution of property. They’re talking about the demise of nationalism. They’re talking about centralization, I guess we could call it a form of hyper-nationalism where you take several of the elites from around these other countries and concentrate them into an even more select group, and they’re gonna set the important policy agendas. Now, that doesn’t mean that there isn’t an element of democracy and self-government on some of the less important issues – you still have that type of input. But on the critical issues, the issues that really matter, those decisions are being made further and further removed from the people. Now, let me briefly talk about American jurisprudence and the Bill of Rights. Up until 1925, the Supreme Court was adamant that the Bill of Rights do not apply to the states. The First Amendment begins, “The Congress shall make no law,” but in the late 1880’s, 1890’s, and the first part of the 20th century, academics began to pressure judges to take the Bill of Rights more seriously. Now there was some of this before, even in the 1860s, there were a couple congressmen in Ohio that wanted to incorporate the Bill of Rights into the Fourteenth Amendment, thereby making them applicable to the states. But even prior to the Fourteenth Amendment, Chief Justice John Marshall said the Bill of Rights do not apply to the States in an 1833 case called Barron v. Baltimore, and in several subsequent post-14^th Amendment Supreme Court cases, the Supreme Court reiterated Marshall’s position that the Bill of Rights does not apply to the States. That changed in 1925, and then again in a big way in 1937, but to make a long story short, it gave the federal government “social engineers” (and that is their term, not mine). Roscoe Pound wrote prolifically about the failure of democracy and the need to have the courts do an end-run around the democratic institutions such as State legislatures, the Congress, and so on, and to incrementally take control of the government. They made no bones about this. This was during the rapid industrialization of the United States, and they were saying: “We just can’t address these issues democratically. They’re too big and the people are not prepared, just not equipped to deal with these complicated issues.” They wanted the courts to handle the “complicated issues,” the courts being a mouthpiece for the elites. There’s a lot of literature out there that demonstrates that the courts are not making this stuff out of whole cloth. When they issue a decision, the courts, the justices, the judges in the appellate courts, the trial courts, they’ve been trained, they’ve been schooled, they are accountable to a particular group of elites. It’s not as though they’re sitting down and saying, “Well, how do we address this technical issue?” No, they’ve already been primed on how to address certain issues.

Anyway, beginning in 1947, and moving forward into the 1960’s and 1970’s, the Bill of Rights, almost in a full-blown capacity, is now applicable to the States. We see how that has tied the hands of the States on some important issues, whether it’s the relationship between church and state, abortion, privacy, and on and on – it’s had a profound impact. Now, in 1937 Justice Stone said: “Well, look, we’re gonna let the Congress deal with the economic issues,” because this was the time when the administration attempted to pack the court because FDR’s New Deal policies were being declared unconstitutional and the Court became somewhat rattled by that political backlash to them protecting property rights.[1] So they said: “We’ll let the Congress deal with property rights, not that property rights aren’t important, but if you have a gripe with your property rights being violated, you have recourse to the political process. But some of these other rights, especially when it comes to ‘discrete and insular minorities,’ the democratic process doesn’t work for them.”[2] Now, this is a screwy idea and that dichotomy Stone set up really doesn’t stand up to scrutiny, but to summarize, the Congress, they said would take care of property rights and the Court would take care of all those important fundamental rights that you find in the Bill of Rights. And one of those rights, according to the Court, is this notion of equality. So, you have this convergence of equality and property. If an unequal distribution of property leads to unjust social results, then the Court’s gonna start to go into the property realm and be much more involved in that area.

Now, how did they make that leap? Just as the Court incorporated the Bill of Rights into the Fourteenth Amendment and made those rights applicable to the States. Now, remember the States are where most of the governing takes place. If you look at budgets, at personnel, at the important things that make a government function, it’s still at the State level. That’s where most of the governing, most of the public policy is happening, but now it’s under the guidance of the federal government. But just as the States have been made subordinate to the federal government, national governments are in the process of being made subordinate to these transnational organizations. And we don’t want to say “international” because “international” presupposes that the nation-states are still for the most part autonomous, while “transnational” connotes that it’s over and above the nation-states. And it connotes this notion of subordination. So, if you were to make this a diagram, the States have now become counties of the federal government (which operates de facto as a national government) and the national governments are in the process of becoming states to these transnational organizations. This might seem to be somewhat farfetched, but that’s what I’m gonna address over the next few minutes.

Let me go back to a statement made by Senator Judah P. Benjamin, on February 4th, 1861, as he was giving his final speech on the floor of the U.S. Senate responding to a remark by Northern senators. He said:

“It is said that the right of secession, if conceded, makes of our Government a mere rope of sand…far better, a rope of sand, ay, the flimsiest gossamer that ever glistened in the morning dew, than chains of iron and shackles of steel.”[3]

The notion was that you must have this control, (and American jurisprudence in the first part of the 19^th century drips with this), you must have uniformity and efficiency if you want to have a commercial empire that can compete with Britain, the continent, and other powers. But Benjamin was saying that you do have an alternative. You can have a very loose confederation (i.e. a rope of sand, which is not a rope at all), or you could have the shackles of steel that keep you close together. The European Union is a contemporary case study in how this centralized authority is developing over autonomous nations. Now, admittedly, the political, social, cultural, and economic dynamics are very complex, and in various ways contribute to or detract from the establishment of centralized authority. The last time I was in Europe, it was quite clear that neither the academics nor the people of Europe understand what they’re getting into. The constitution they’re drafting is very complex. They already have something like 80,000 pages of regulations and codes. Nobody really knows what’s going on. They’re essentially turning their governments over to a managerial elite of European bureaucrats, so don’t think that they’re any better off than we are. They’re probably worse off in many ways for a variety of reasons. Nevertheless, three conclusions can be proffered at the outset. First, the framers of centralization must proceed incrementally, otherwise the nationalistic tendencies of the member states would derail the centralizing project. They started this exercise back in 1945, I guess, more specifically, 1955, and here it is in 2004. This was on the drawing boards back in 1955 and they’re just now getting ready to implement it. Second, incrementalism is highly dependent upon the legal system to maintain the momentum of centralization and eventually complete the handiwork of establishing a “legitimate” centralized authority. In other words, the courts are critical in this exercise of centralization, just as they were in the United States. Third, the practicality of centralization rests upon a form of economic integration among the member nations that make the centralizing project politically palatable. In other words, the citizens have to be co-opted. There has to be something in their interest to get them to buy into the centralization (usually some promise of economic prosperity), otherwise, centralizing forces would be overcome by the cultural and social centrifugal ones.

There’s historical precedent, of course, particularly the transformation of U.S. federalism into an increasingly unitary system of government, and the European framers of the E.U. have studied and taken into consideration the ups and downs of that transformation. They have learned from their American cousins just as contemporary American centralizers are learning from them. The overwhelming consensus of these centralizers is their hostility to traditional notions of sovereignty and their preference for imperial rule. It is notable that their disdain for traditional notions of sovereignty should not be misconstrued as hostility towards government. To the contrary, they perceive traditional notions of sovereignty as an obstacle to more, not less, government. It is not that they are opposed to government (as was the case with many of the framers in our tradition). They are opposed to government not under their control. Just as States’ Rights had to be minimized to make way for an ever-increasing role of the federal government, today national governments have to be minimized to make way for the emerging imperial role that the United Nations has unsuccessfully striven for and which the E.U. is beginning to exert. The European Union’s success is due in large measure to its revival of the Roman Catholic concept of subsidiarity. More than anything, subsidiarity thus serves as a critical viewpoint with which to constantly undermine the internal and external foundations of state sovereignty. Subsidiarity is essentially the idea that for policies to be moral, they have to be decided by those that are most closely impacted. In other words, decisions need to be made at the level closest to the people that are gonna have to live with the consequences of those decisions. So, it could be a parish, it could be a county, it could be a state, but you try to get the decision-making process as close as possible to the people that are gonna have to live with the good or bad consequences.

Now, when you say this, you know, people think of the papacy, think of the Bishop of Rome and centralization, but the Roman Catholic Church was not as centralized at one time, and even today there is still a lot of decentralization within the church. The centralizers believe in subsidiarity as a means to their end of total centralized control. Let’s assume you wanted to undercut the State of Florida, so rather than dealing with Tallahassee you deal with the city of Miami or Jacksonville or Tampa or West Palm Beach. In other words, you take the State and push it out of the way as a player in the relationship and deal directly with these large metropolitan areas. Now, the cities and counties are agents of the State, but you’re co-opting that role, you’re taking the role as the State and having a direct relationship with these municipalities. It’s like what happened when America shifted from the Articles of Confederation to the U.S. Constitution; rather than dealing with the States, they went straight to the individual. Dealing directly with metropolitan areas is one way of getting to individuals, and the U.S. Department of Commerce defines metropolitan areas. For example, the metropolitan area where I live stretches from West Palm Beach down to Miami and includes about 5 million people. So, if the Federal bureaucracy has a direct relationship with these metropolitan areas, they’re making county commissions more important and diminishing the importance of State legislatures. So, the people in north Florida don’t have the same input in the policy that’s being implemented in the treasure coast of Florida. In other words, they’ve taken a player out of that linkage. So, it might sound good at first, but there’s certain costs attached to it. In the colonial period, that’s how the British crown related to the colonies. It related to them directly. They were all divided.

This subsidiarity concept is relatively new. It came around in the early 1970’s, because the centralizers realized they weren’t getting anywhere with the European Union. They had the various common markets with steel and coal and those were working fine, but they ran into inertia and that’s when they started to revive this notion of subsidiarity and the Europeans were receptive to it, because if your population centers say, “Hey, I could get a better deal working with the E.U. than I can with working with Berlin or Paris,” then you’re gonna cut that deal. How can a concept that was designed to appease the nationalists be so instrumental in undermining national sovereignty? Article 9, Section 3 of the EU Constitution makes this clear:

“Under the principle of subsidiarity, in areas which do not fall within its exclusive competence the Union shall act only if and insofar as the objectives of the intended action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.”[4]

In other words, if this doesn’t fall within their realm of constitutional authority, they’re gonna fall back on subsidiarity. So, you could have people in Berlin, London, more or less in implicit confederation, subverting what their national governments want to do, because now they’re dealing directly with the E.U. Think about Europe in the 1930’s. So, they’re saying: “How do we deal with this?” And that was sort of a cop out. “We’ll let the locals deal with their own problems. Let them make these decisions.” How do you deal with socialism? How do you deal with fascism? It is decentralization. I’m not denying that. But it’s one step towards decentralization, and two steps towards centralization because what they’re doing is minimizing the importance of nation-states. Think about dealing directly with a metropolitan area or a community, however the E.U. may define that. Where’s the notion of the state or the nation in this? Now, it does have certain advantages. There’s no question about that. But we have to be aware of the fact that it has a very strong tendency towards empowering the central authority and disengaging national authorities from the decision-making process. What is relevant is the juxtaposition of the principle of subsidiarity with the process of creating an ever-closer union. Remember that’s the end game, that’s what they want to do. They want a very strong union.[5] The former is instrumental in realizing the latter.

As was the case in the U.S. experience secession (or, rather, the lack thereof) is a key component of the union’s viability when confronted with state-based resistance to centralization. This is why they did not allow a secession clause or article. This is why it was so hotly debated in the E.U. The absence of a constitutional right to secede in any union of member states indicates that coercion – in contradistinction to consent – is the glue that will hold the union together. When irreconcilable differences between central and state authority emerges, the constitutional status of secession in a federal system of government reveals much about the nature of the ties that bind the member states together. The constitutional status of secession affects whether the ties are primarily consensual or coercive, and commensurately the balance of power between the central and state governments, as expressed in the 1861 statement by Senator Benjamin regarding the “rope of sand.” The ties binding the American States together may be a “rope of sand” or “chains of iron.” A rope of sand may suffice in maintaining an enduring Union based upon the consent of the States, provided the collective economic, cultural, and security interests are so prominent that consensual membership suffices, even in the absence of a centralized government with the legal authority and power to coercively maintain membership. However, when the economic, cultural, and/or security interests of the States diverge and the consent of a member State or States to remain in the Union is withdrawn, then compelling such a State to remain in the Union would be inconsistent with a Union based upon the consent of all its members. In a consensual federal Union, if substantial changes to economic, cultural, and/or security needs of a member develop, its membership in the union may be discontinued as its interests dictate, but once centralized government assumes coercive enforcement powers to maintain the Union intact, then the Union becomes an end in itself in contradistinction to an instrumental means to securing the interests of each of its member States. The nature of the Union is thus substantially changed from one designed to promote the collective interest of its members to one promoting the selective interests of a dominant coalition of members that control the central authority.[6]

Now, let me stop there. When I’m in Europe, you hear from other countries, especially the smaller ones, that the E.U. is essentially Germany. It is German imperialism constitutionalized. Now, the French have hooked in with this because they want to be part of the action. But a lot of States in the E.U. are really skeptical about how much power Germany is gonna wield in this European Union. They have the rotating presidency and they have this and they have that. But the gravitas is in Berlin. At a critical point when a member State of the Union decides that its continued membership in the Union is contrary to its interests, it should have the right to withdraw. The fact that that was so hotly debated and contested speaks volumes in European politics because they know the chilling effect which including that clause would have on E.U. policies. Just an example of the process I’m talking about, just to show that subsidiarity by itself is no panacea for our problems or centralization, the thing same thing happened during the New Deal. If you look at, if you look at the way spending changed among multi government levels in the early 1930’s, State spending stayed pretty constant. Local spending, municipal spending (which had been the highest form of government spending) drastically dropped. Federal spending drastically rose. The federal government began to deal directly with municipal governments, and that’s how it exerted its power. And that’s where you have the center of liberalism in most States, in the metropolitan areas, especially the coastal areas. So, it has sort of a double whammy. They get an ideological boost from dealing directly with localities, but they also get to minimize the importance of the State governments. As evidenced by developments in the United States and the European Union jurisprudence, the transformation of a consensual Union to one based upon coercion is not necessarily contrary to the rule of law. You could do this and make it legitimate.[7] For more than three generations, the American Union was based upon the consent of all the States, but subsequently modified to one based upon national coercion. That modification was sanctioned by the U.S. Supreme Court when it illegitimated secession in 1869 through a precedent-establishing ruling in Texas v. White.[8] In his ruling, Chief Justice Salmon P. Chase (a Lincoln appointee) makes the point that it really comes down to might makes right, the argument that Thrasymachus makes in The Republic. I think the wording Chase used was “If secession succeeds, it’s revolution. If secession fails, it’s rebellion.” Chase was quite blunt about calling it rebellion because they were not successful in their attempt to withdraw. Is that any way to establish a republic based upon consent?

The substantial modification to the American rule of law was facilitated by ambiguities within the U.S. Constitution regarding two key constitutional issues: federal judicial supremacy and the Constitutional status of State secession. By the way, if you look at the Bill of Rights, the Seventh Amendment mentions “common law.” Common law is a very important part of American jurisprudence. It always has been. Common law is essentially that the judges need something to fall back on when the statute does not clearly address the case that’s being litigated. It doesn’t really empower judges if they’re true to common law, because common law, even though it’s diverse, there’s a corpus of law that parties (or at least their legal counsel) should know what the legal expectations are. So, common law is not the bug-bear that it’s made out to be unless you have corrupt judges on the bench. But judges that take common law seriously would go to Blackstone’s Commentaries or American common law. We have our own common law traditions. The alternative would be civil law, as you have in Louisiana (which has its own problems). If American federalism is to maintain the remnant policy prerogatives based upon States’ Rights, it is necessary to scrutinize those juridical developments in the European Union regarding judicial review, subsidiarity, and States’ Rights. The integration of U.S. and E.U. jurisprudence necessitate that neither can be understood in isolation of the other. James M. Buchanan, a Nobel-Laureate-winning economist, wrote the following in 1991:

“The lessons of the American experience for Europe are clear. The citizens of the separated nation-states face an opportunity to enter into a federal union that can be an instrument for achieving the enormous gains of economic integration. In this respect, the parallel of the America of 1787 is direct. In the process of establishing an effective federal union, a central political authority must come into being with sovereignty over citizens in all of the nation-states. But the ultimate powers of this central unit must be reckoned with and checks must be included in the constitutional contract that defines the federal structure. The formal rules of such a contract will not, however, be sufficient, as the American experience so well demonstrates. There must also be some explicit acknowledgement in the contract of establishment, of the rights of citizens in the separate units to secede from the union, upon agreement of some designated supra-majority within the seceding jurisdiction.”[9]

So, it was quite clear that economic integration is good, but you need to have a check on the powers which such integration will transfer to the elites that are gonna be monitoring the economic integration. In the United States the prerogatives of State high courts vis-a-vis the U.S. Supreme Court and the constitutional status of State secession from the Union were merely implicit constitutional options, lacking the explicit acknowledgement of secession recommended by Buchanan for the E.U. This would not have been the case had there been explicit provisions recognizing parity between the State and federal courts and the States’ constitutional right to secede. In other words, it wasn’t spelled out as such until the U.S. Supreme Court declared in 1816 and 1821 that you had federal judicial supremacy. Prior to that, the understanding was (and this wasn’t just a Southern understanding – Midwestern States and some Northern States also believed this) that there was parity between State high courts and the U.S. Supreme Court, and that the SCOTUS could not dictate policy to State Supreme courts. That changed in 1816, when Joseph Story wrote the Martin v. Hunter’s Lessee ruling, and in 1821, when John Marshall wrote the decision in Cohens v. Virginia. And the Cohens v. Virginia was actually a trumped-up case. They were forcing the issue. They wanted something to litigate. It had to do with lotteries that were authorized in the District of Columbia. The State of Virginia had laws against the lottery system. Cohens went into Virginia to sell his lottery tickets. He was arrested and criminally charged. He appealed to the U.S. Supreme Court from the Virginia State Supreme Court, and Virginia simply refused to recognize that SCOTUS had jurisdiction and authority, but they ended up losing the argument.[10] That dealt with the criminal side of law. The civil side was dealt with in Hunter’s Lessee. That case had to do with the land from the Treaty of Paris that those Virginians had in what is now West Virginia.[11] But if you had judicial parity between the States or judicial federalism, we wouldn’t be having the problems that we’re having today. In other words, the U.S. Supreme Court would not have the power over the States that it currently has.

From a public policy perspective, the transformation of the American and the European Unions from associations based upon consent to associations based upon coercion is essentially the reallocation of power from the member States to centralized authority. Now, what that reallocation is nobody knows, but they structured their system in such a way that it’s unclear what the European Court of Justice’s jurisdiction is going to be. But if you read the comments in the law review journals in Europe and such, they want to follow the U.S. model. Even when he was U.N. General Secretary, Boutros Boutros-Ghali specifically said in, I think it was his final speech, that for the U.N. to ever have the authority it needs, it has to rely on the U.S. Supreme Court, that the Supreme Court has to begin to incorporate the commitments and obligations of the United States to the community of nations into American case law. Boutros-Ghali makes a very good point. We have all types of commitments that we are a party to, but simply have either not been litigated or not enforced. It’s just a matter of time. And if you look over the last couple court sessions, you’re beginning to see specific references to international law. This was an issue that was on NPR. Antonin Scalia recently gave a speech saying how bad it is that his colleagues on the bench, his associate justices, are referring to case law in Europe and case law from the World Court. Not that it has any legal standing, but they’re putting it in their opinions so that when lower courts (U.S. district courts, U.S. courts of appeals, even State courts) are looking at what the law requires, these justices are saying: “Well, here’s an example.” Then you’ll start to see those cases cited in other court opinions, in lower federal courts, and in the State courts. Scalia says this is bad news. This is not a good development because they’re minimizing the importance of the U.S. Constitution. Now, the response was from some professor NPR had as a guest on there. I didn’t catch his name. His response was that Scalia and Thomas are all wrong, that the U.S. Constitution is organic and it grows, extends, and matures, and it is made to include this case law of these foreign jurisdictions. When Roscoe Pound and those other guys were discussing it, it was just communications in law reviews between the different scholars and judges. But when it starts showing up in the popular press, you know you’ve come a long way.

The Bricker Amendment was proposed by Senator John Bricker of Ohio, and he was responding to a Supreme court case from 1920, Missouri v. Holland, and a case from 1936, U.S. v. Curtiss-Wright, which was an economic case that had foreign policy implications where Justice Sutherland made the comment that international agreements between the President and another country have the same legal standing as a treaty, even though it wasn’t ratified by the U.S. Senate, it only had the signature of the President.[12] So, Senator Bricker came around and said, “This is unacceptable. We need to amend the Constitution to overturn these two decisions.” But even in Missouri v. Holland, Oliver Wendell Holmes said that to understand what the reserved powers of the States are, we have to understand what the nation has become.[13] This is an organic view, and it’s really the idea that as the nation becomes more important on the world stage the importance of the States decreases. I guess the Bricker Amendment would have stopped some of it, at least a lot of this case law from being incorporated, but the Justices are very ingenious. There are ways around what the Constitution requires and what statutes mandate and they’re fairly well committed. Remember their concept, as you read these documents going back to 1945, when the guys met in San Francisco to draft the U.N. Declaration of Rights. The reference is not to countries. It’s to “the human family.” And there are specific references that each State is an equal in the United Nations, which is sort of like the debate in the U.S. Constitutional Convention (Virginia Plan vs. New Jersey Plan vs. Connecticut Compromise). As Professor Livingston has pointed you have 230-some nation-states, some with just a couple hundred thousand people. Per the U.N., they are the equal of the United States of America when it comes to coming up with some of these notions and the main thrust is very egalitarian. I mean, the things they come up with are just mind-boggling. You have a right to paid vacation days.[14] You have a right to free education.[15] You’re entitled to a house.[16] You’re entitled to a job.[17] There’s going to be a chicken in every pot.

If you have a chance, read Oliver Wendell Holmes’s opinion in Missouri v. Holland. That case had to do with migratory birds going from Canada to the Southern part of the United States. They would fly over Missouri and they have to be flying over Missouri during hunting season, so the Missourians would shoot these birds. A treaty was signed with Great Britain at the time that we would protect those birds, that people could not shoot them, because it was depleting the population. The State of Missouri said: “Well, that’s unconstitutional because we have reserved powers and we decide what our people can hunt and can’t hunt.” To make a long story short, Holmes and six other Justices said: “No, the treaties are more important, and Missouri’s part of a larger organization of States with national interests.” So, when the State’s interests clash with national interests, the treaty always prevails. As a matter of fact, when it comes to treaties, as Oliver Wendell Holmes points out, there are no constitutional limits. The States are represented in the treaty ratification process. So, the Court essentially says when it comes to a treaty, you could actually circumvent the Bill of Rights. I give this exercise to my students on one of the examinations. Imagine Congress passes a law establishing an official church because they were authorized to do so by a treaty. Is that constitutional? My students have to go to Missouri v. Holland and sort out whether or not it is. The right answer is, based upon precedent, you can circumvent the Bill of Rights and prohibitions against the federal government through the treaty-making process.[18] I mean, that’s quite clear as you read the logic, if not the explicit words, of Oliver Wendell Holmes in Missouri v. Holland. An area of jurisprudence where this is going to play out fairly soon is the Second Amendment. In all probability, the Second Amendment is gonna be neutralized through the treaty-making process. There’s already a lot of talk in academic circles and political circles about doing that. Their notion is they’ll disarm everybody to make you safer, whereas a person who believes in the Second Amendment believes you arm everybody to keep a check on each other.

Now, a sane person might ask: “How can the United States make a treaty that would require the government of the United States to violate the Constitution?” But in asking that question, you’re looking through the wrong lens. You’re looking at it through the lens that the Constitution means something. To understand this stuff, you need to look through the lens that there’s a political agenda out there that’s been percolating and taking shape and they’re just waiting for the right time to get it through, authorial intent and objective truth be damned. Now, Americans have a reputation for breaking treaties. What 90 or 95% of treaties we made with the Indians were broken. The thing is, if you dust off all the old documents, they probably conceded some of their rights somewhere down the line, and there is a paper trail to this. As to whether or not it was ethical or coerced, that’s a separate issue. What we’re dealing with now is something that’s much more sophisticated. They have an agenda. It’s much more planned out. It almost has momentum and a life of its own. It really does, you know. It’s sort of like a juggernaut. It looks like it’s a beautiful thing to watch, but when it gets up close it does a heck of a lot of damage. If the right circumstances present themselves and you’re litigating a case, you may find yourself before a Mexican judge or a panel of a U.S. and a Mexican judge or a panel of a U.S., Canadian, and Mexican judge. The details haven’t been worked out because it’s so new, but the world is changing right before our eyes. Now, remember, the rule of law, the juridical rule of law is this very slippery concept, but it’s something that the Supreme Court at least claims to be very much committed to. But the developments in the United States’ experience, if not apparent in the European Union, are at least probable under the current institutional prerogatives of the E.U. Court of Justice. The E.U. Court of Justice and its Court of First Instance have important roles to play in transforming the formerly sovereign nation-states of Europe into a centralized European entity by providing the judicial safeguards ensuring that the E.U. community law is superior to national law (i.e. that it is superior to national interests), the Court of Justice is well-positioned to exercise judicial review over member nation-states. This is a tremendous power with opportunities to negate or override the consent of significant segments of nationally-based European populations.

Although the American and European experiences are far from identical, there are parallels in the exercise of judicial power pertinent to both the United States’ and the European Union’s highest courts. Now, remember these developments are not happening in dichotomous vacuums. U.S. legal scholars are observing what’s happening in the European theater, and the Europeans are looking what’s happening in the United States. You start to have this dialogue, and in many ways there’s gonna be influence on both sides. We’re gonna influence them. They’re gonna influence us. If national members reserve the right to secede, the European Union judges would be compelled to be more deferential towards national policy preferences. In a worst-case scenario, if the European Union were to ignore important nationally-based policy preferences, it could provoke secession as the avenue for the expression and maintenance of nation-based popular control and consent within the territorial limits of the member States. Moreover, it should not be assumed that the E.U. Court of Justice would impartially adjudicate power struggles between the Union and its member States. As evidenced by the United States Supreme Court case law, judicial federalism, and State secession, the U.S. Supreme Court was a branch of the national government and, in the long, run acted accordingly nationalistic. Now, a gentleman asked me a question during the break and it was more or less: “Well, what about the Congress? What could the Congress do? Or what could the people do? How could we make the courts more accountable to the American people?” My response was essentially that the Congress has acquiesced in what the Court is doing. It’s not as though the Court is acting in isolation, that the Court is not deferential to what the Congress wants. There are some Congresspeople that would like the Court to behave in a different way, but when it comes right down to it, the Congress and the Court are following the same agenda.

The Congress, legislators, simply have the problem of elections. So, what they do is defer the high conflict, high salient issues to these unelected judges and Justices, which gets them off the hook. But they in their heart-of-heart they mostly concur with and support the Court’s decisions. If that weren’t the case, the Congress could easily constrain the Court within the narrow limits of original jurisdiction and just take away all the business of the Court. It could even shift a lot of the litigation to the State courts. Now, insofar as the people, I’m not so certain that the American people are that dissatisfied with what the Court is doing. And even if they are dissatisfied, they could be brought along. They could be “educated” that what the Court is doing is in their best interests. So, we’re really in quite a fix here. An entire book was recently written in which the author proclaimed that the U.S. Supreme Court is the most democratic branch of the national government. And the reason why this author says it’s the most democratic branch of the national government is because the Court does not only what’s in the American people’s interests, but also what the American people want the Congress to do, but Congress is too cowardly to do. So, we have this literature that’s popping up and we hear a lot of talk about politicians, about the people on the Court and how they’re unaccountable, they’re doing this, they’re doing that. But there’s a whole other discussion taking place that the Supreme Court is the most democratic branch of the national government. If you don’t believe me, just go to the law review journals that you could find online. Honestly, the argument does have some plausibility. But the question is, should it be that way? Because my notion is that when people say that the American people are uninformed and apolitical and they don’t know what they’re doing, there are reasons for that, and one of the reasons is they haven’t had much practice in being self-governing. Felix Frankfurter pointed this out in his dissent in Baker v. Carr (well, really, in his opinion in Colegrove v. Green). Colgrove had to do with apportionment and whether or not there was a violation of the 14th Amendment, because the Illinois legislature was malapportioned. It was based upon territory instead of population. Frankfurter said that this was quite clearly a bad system, malapportionment, but the people needed to change it, because when the Court starts making these decisions for the people, the people are going to become unable to be self-governing. It’s like muscle atrophy. If the people stop governing themselves, they will eventually lose the capability to govern themselves. And we see that across the board with the American people. We have voter turnout around 50%, with about 15% in the primaries, but the exit polling makes it quite clear that those who are turning out to vote don’t have a clue, not only for whom they voted, but what their chosen candidates’ policy positions are. It’s really a very broken system.

Everything the Court does is the law of the land, so it percolates all the way down to county courts. So, you know, it’s just at the top of the pyramid, but it not only has the power of the lower courts to enforce its ideological preferences, but it also has moral authority. I mean, look at Brown v. Board of Education.[19] To criticize that decision is poison, but anybody who looks at that decision knows it’s based upon bad law, it’s based upon bad politics.[20] You could say: “Well, the Court was well-intentioned.” The road to Hell is paved with good intentions. The Court may have been well intentioned, but it’s one thing to say: “This is what’s good, this is in the public good.” So, how do you define what’s in the public good? Well, we’ll let these nine guys (now nine men and women) do it. They’re probably wrong, but we’re gonna defer that decision to them. How we get from there to here is a very complicated process. So, when Brown v. Board was decided in 1954 and then Brown II in 1955, you had things that were happening in the American economy. To make a long story short, there is more segregation in schools today than there was prior to the Brown ruling. That’s hard to believe isn’t it? But it’s true. Harvard issues a study every two years and, you know, segregation is alive and well in American education. So, even though the intent was to desegregate, that wasn’t the outcome. Most of these Justices are very mediocre, and they’re on the Court primarily because of political connections, and we’re giving them a tremendous amount of power. But think about the language of “the human family,” and “social justice” and other such language. The American people will buy into it. If not today, certainly tomorrow. I mean, there’s a tremendous chilling effect on discussing issues as they really need to be discussed. We all know that just from our own personal experiences. Anyway, the point is that what’s happening in the European Union, and also in the World Court, is a dialogue. It’s not a one-way street. What they do influences us, and vice-versa.

Let’s go back to the American example. Since the Union’s origins in 1789, the fundamental challenge of American case law has dealt with the balance of power between federal and State governments. When Alexis de Tocqueville talked about the balance of power between the federal and State governments, he wrote:

“The first difficulty which the Americans had to face was how to divide sovereignty so that the various states of the Union continued to govern themselves in everything to do with internal prosperity but so that the whole nation, represented by the Union, should still be a unit and should provide for all the general needs. That was a complicated question and hard to resolve…The duties and rights of the federal government were simple and easy to define because the Union had been formed with the object of providing for certain great general needs. But the rights and duties of the governments of the states were many and complicated, for such a government was involved in all the details of social life. Therefore the attributes of the federal government were carefully defined and it was declared that everything not contained within the definition returned to the jurisdiction of state governments, hence state authority remained the rule in the federal government, the exception.”[21]

Tocqueville was stating a truism. Until the middle part of the 20^th century most of the governing in this country occurred at the State level. Most of the important issues were decided by State governments, which were much more accountable to the people within the respective States. Now, even though the duties of the governments of the States are “many and complicated,” as Tocqueville noted, and have been substantially expanded since Tocqueville’s analysis, the duties and rights of the federal government are no longer simple and easy to define. In the course of time, State restrictions on the expansion of federal power were for the most part ineffective because the U.S. Supreme Court’s jurisprudence failed to recognize the States as sovereign. This is something we don’t much discuss, but that failure is a major one. It’s sort of a sin of omission. They don’t talk about the sovereign States.

This “first difficulty Americans had to face” was acknowledged by Publius (specifically Alexander Hamilton) when he charged that the Anti-Federalists aimed “at things repugnant and irreconcilable; at an augmentation of federal authority, without a diminution of State authority; at sovereignty in the Union, and complete independence in the members.”[22] Publius (Hamilton) was being disingenuous. The use of a canard to place one’s political opponents on the defensive may be an effective rhetorical trick, but it is plain that the States did not seek to retain complete independence within the Union as is amply evidenced by the limitations to State authority in Article One, Section Ten, and by the delegation of certain powers to the federal authority in Article One, Section Eight. That’s why the Confederate Constitution doesn’t use the word “delegated.” Its authors used the word “granted.” We’ll talk about why they changed that language in the next session. So, it’s not as though the States were trying to keep their sovereignty, as Publius claimed. They did delegate powers (Art. I, Sec. 8) and they did constrain themselves (Art. I, Sec. 10) in the U.S. Constitution. The States were not concerned with an imperium in imperio, a sovereign within a sovereign, per se, but with the constitutional ambiguity surrounding imperium. In other words, how were the States, the principals, to keep the central government, their agent, from usurping their control over their reserved powers? So, they gave certain delegated powers to the federal government and they reserved all those other important powers to themselves. How were they to keep the federal government from encroaching on what they retained? The language and structure of the U.S. Constitution manifests this overriding concern, as does the ratification record. Most significantly, there is neither explicit nor implicit evidence that the States transferred their sovereignty to the federal government.

Now, this is a very important concept. If you get anything out of this lecture, this is what I want you to pay attention to. According to common law (and this shows the importance of common law) as understood at the time of the Constitution’s ratification, an implicit transfer of State sovereignty to the federal government was untenable. Famed judge and legal scholar St. George Tucker stated what was obvious to him and his peers in his Commentaries on Blackstone:

“The powers delegated to the federal government being all positive, and enumerated, according to the ordinary rules of construction, whatever is not enumerated is retained; for, expressum facit tacere tacitum (“that which is expressed makes that which is implied cease”) is a maxim in all cases of construction: it is likewise a maxim of political law, that sovereign states cannot be deprived of any of their rights by implication; nor in any manner whatever but by their own voluntary consent, or by submission to a conqueror.”

Let me read that again: “Sovereign states cannot be deprived of any of their rights by implication, nor in any manner whatever but by their own voluntary consent, or by submission to a conqueror.” In other words, if they do not explicitly transfer sovereignty to the central authority, it never happened. Now, we’ve had these real good discussions about claims by people like Joseph Story and Abraham Lincoln concerning the collectivity of the American people, the idea that the Union preceded the States, and how that was an attempt to do an end-run around this common law tradition. Now, if you go through the Constitution, it refers to the States in the plural as “they” or “them” or “are” throughout the text.[23] Even in the Declaration of Independence, the last paragraph refers to the States in the plural.[24] It’s so obvious it doesn’t even need to be discussed. There is ample evidence that the States retained ultimate sovereignty in the event of an irreconcilable conflict with the other States organized into a Union. That’s why I was making the argument the other day, that when we think about the Union, we have to sort of withdraw the curtain. What is the Union? It’s a coalition of other States that at any particular time have the control of the federal government. So, you have these shifting coalitions, and that’s why I made the point that the war of 1861-1865 was a war between the States.

As evidenced by Article Five of the U.S. Constitution (the amendment article), Article Seven, the ratification process, and the Eleventh Amendment, where it refers to “one of the United States,” the States are the constituent parts of the constitutional federal compact. The States are the principals and the federal government their agent. Three States, New York, Virginia, and Rhode Island, conditionally acceded to the Union via their respective ratifications, reserving to themselves the constitutional option to secede. And this is why this notion of subsidiarity in the E.U. is so important. They also have that same reality, that same common law tradition, for example, in England. This notion of subsidiarity is how they politically can get around that. These communities aren’t sovereign, but you’re more or less treating them as sovereign in a de facto way by dealing with them one-on-one, because in international law up until very recently individuals did not have standing in an international court. It’s only in the last decade that individuals have standing in an international court. So, a citizen of the Republic of Ireland could sue the Irish government in the European Court. Prior to just a few years ago, that individual would never have had standing. It was just contrary to the way we conducted business.

[1]The case in question was United States v. Carolene Products Company. For Stone’s exact wording, see: https://www.law.cornell.edu/supremecourt/text/304/144#fn4

[2]“Discrete and insular minorities” being Stone’s exact phrase. See: https://www.law.cornell.edu/supremecourt/text/304/144#fn4

[3]Farewell Speech of Judah Benjamin to the U.S. Senate, 4 Feb. 1861, quoted in Thomas Ricaud Martin, The Great Parliamentary Battle and Farewell Addresses of the Southern Senators on the Eve of the Civil War (New York and Washington, Neale Publishing Company, 1905), 91-92. https://archive.org/details/greatparliamenta01mart/page/90/mode/2up

[4]For a more recent explanation of the principle of subsidiarity by the EU Parliament, see: https://www.europarl.europa.eu/factsheets/en/sheet/7/the-principle-of-subsidiarity

[5]See, for example, the Preamble to Part II of the E.U. Constitution (page 22): https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52003XX0718(01)

[6]Need one point out that in a Union coercively maintained the sovereignty of the States is destroyed and the Union transformed into an Empire?

[7]Of course, this is only the rule of law if one accepts the authority of the U.S. Supreme Court to overturn State laws, redefine and/or reinterpret the Constitution, and declare secession illegitimate in the first place. To call such “the rule of law” rather than the whim of tyrants is to strain the definition of that phrase to the breaking point.

[9]James M. Buchanan, “An American Perspective on Europe’s Constitutional Opportunity,” Cato Journal, Volume 10, Issue 3 (1991), 621-622. https://www.cato.org/sites/cato.org/files/serials/files/cato-journal/1991/1/cj10n3-1.pdf

[10]Thomas Jefferson was horrified by the Cohens ruling. As he told Spencer Roane in his letter of 9 March 1821: “The great object of my fear is the federal judiciary. That body, like Gravity, ever acting, with noiseless foot, & unalarming advance, gaining ground step by step, and holding what it gains, is ingulphing (sic) insidiously the special governments into the jaws of that which feeds them.” https://tjrs.monticello.org/letter/1557 For Spencer Roane’s rebuttal of Marshall’s Cohens opinion, see Roane’s Algernon Sidney essays: https://en.wikisource.org/wiki/Author:Spencer_Roane

[11]Specifically, the Treaty’s requirement that land which had been seized from Tories/Royalists during the war must be returned to them.

[12]This despite the fact that Article II, Section 2 of the Constitution explicitly requires a two-thirds majority of the Senate to ratify any and all treaties: https://www.law.cornell.edu/constitution/articleii#section2 It should come as no surprise that Sutherland was an advocate of substantive due process.

[13]Holmes explicitly targeted the Tenth Amendment in his opinion: “The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that amendment has reserved.” https://www.law.cornell.edu/supremecourt/text/252/416

[14]U.N. Declaration of Human Rights, Article 24.

[15]Ibid., Article 26.

[16]Ibid., Article 25.

[17]Ibid., Article 23.

[18]One might argue that the Court has said the Bill of Rights cannot be abrogated by agreements with foreign powers. See Hugo Black’s ruling in Reid v. Covert (1957): https://www.oyez.org/cases/1955/701 This is a paper-thin defense, however, as the Court could overrule itself. Indeed, Reid v. Covert is famous for holding the distinction of being the only case in Supreme Court history where the Court has ruled on a case, then reversed itself on rehearing.

[19]For the Court’s determination of how Brown I should be carried into effect, see its ruling from one year later, in Brown II: https://www.oyez.org/cases/1940-1955/349us294

[20]Zora Neale Hurston criticized the Brown rulings as a social engineering experiment: https://teachingamericanhistory.org/document/letter-to-the-orlando-sentinel/ (and she took a lot of flak for it).

[21]Alexis de Tocqueville, Democracy in America, trans. by George Lawrence (Garden City, NY: Anchor Books, 1969), 114-115. https://archive.org/details/democracyinameri0000tocq/page/114/mode/2up  Cf. the different wording of the earliest English translation, pp. 117-118, done by Henry Reeve and lauded by Tocqueville himself: https://en.wikisource.org/wiki/Democracy_in_America_(Reeve)/Chapter_08

[22]Hamilton continued: “They still, in fine, seem to cherish with blind devotion the political monster of an imperium in imperio.” See Federalist No. 15, paragraph 5: https://avalon.law.yale.edu/18th_century/fed15.asp

[23]See, for example, Art. I, Sec. 9, Art. II, Sec. 1, Art. III, Sec. 3, and Art IV., Sec. IV.

[24]The plural form is used twelve times. “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 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 to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honour.”

Marshall DeRosa

Marshall DeRosa received his Ph.D. and M.A. from the University of Houston and his B. A. from West Virginia University, Magna Cum Laude. He has taught at Davis and Elkins College (1985-1988), Louisiana State University (1988-1990), and Florida Atlantic University (1990-Present). He is a Salvatori Fellow with the Heritage Foundation and full professor in the Department of Political Science. He has published articles and reviews in professional journals, book chapters, and three books. He resides in Wellington, FL, with his wife and four children.

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