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Mutualist Blog: Free Market Anti-Capitalism

To dissolve, submerge, and cause to disappear the political or governmental system in the economic system by reducing, simplifying, decentralizing and suppressing, one after another, all the wheels of this great machine, which is called the Government or the State. --Proudhon, General Idea of the Revolution

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Sunday, May 29, 2011

A Kook's Rejoinder to Sandefur

In a series of posts on the Civil War and secession, Tim Sandefur attacks the paleocons and "neo-confederates" at Lew Rockwell.com and Mises.org, among other places, and makes an attempt at an argument against the legality of secession. I wouldn't be surprised if some of the paleos have sympathies for the South and its "peculiar institution," as such, over and above a simple defense of the right of secession as such. But my main concern here is with Sandefur's specific attack on Joseph Stromberg, in his first post: "Springtime for Jeff Davis and the Confed'racy."

Of course there are plenty of historical howlers in the others. For example, this from the third post:

The American Revolution was not an act of secession, but of revolution—hence the name. The distinction between revolution and secession is crucial. Revolution is the natural right to break the law and overthrow a government whenever a long train of abuses evinces a design to reduce the people under absolute despotism. Secession is the idea that a state has the legal authority unilaterally to leave the union. The leaders of 1776 never claimed their acts were legal; they said that they were choosing to break the law, and that their doing so was justified by a higher principle—namely, by the defense of the inalienable rights that belong to all individuals.

The "leaders of 1776" and the Declaration of Independence didn't spring fully grown from the brow of Zeus. Ever read John Adams' Novanglus? It was a legal brief, written in 1774, directed against the legal authority of Parliament to bind the colonies. It was essentially a recapitulation of Adams' brief on behalf of the Massachusetts House of Representatives in 1773, in an exchange of legal arguments between the two houses of the General Court and Governor Hutchinson. Adams' argument was that the power of the British crown in the several colonies derived, in each colony, from the fundamental law of that colony alone. For example, the sovereign allegiance of Massachusetts was not to the imperial crown of the British Empire, but to the natural person of King George III, whose authority as King-in-General-Court was defined under the fundamental laws and charter of Massachusetts. George III was king, not of the Empire, but of Great Britain, Massachusetts Bay and Plymouth Plantation, Providence Plantation and Rhode Island, Connecticut, etc. Each colony was related to Great Britain, and any two colonies were related to each other, in the same way that England and Scotland were related to each other before the Act of Union. Adams wasn't the only person who made that sort of argument. My article "The Failure of Dual Sovereignty: The British Empire and the United States" is a fairly lengthy analysis of the legal arguments in the polemical literature of the 1760s and 1770s.

The British Empire, to sum up, was a league of sovereigns, with the authority of the imperial center holding sway within the territory of each sovereign member entirely by its own consent. The clear implication was that the colonies had the legal right to secede from the Empire, because the Empire's authority over each colony derived from the sovereign authority of that colony. Sound familiar?

Anyway, back to the first post in Sandefur's series. He lumps Stromberg in with the paleocons and neo-confederates, whose defense of the right of secession Sandefur characterizes as "the illegal 'right' of a racist despotism to perpetuate its institutions without criticism." I must have missed the part where Stromberg defended the Confederacy's immunity from criticism for slavery.

He also expends an enormous amount of straw characterizing Stromberg's argument as a claim "that the war wasn’t really about slavery; the south was fighting for free markets, you see."

For Joseph Stromberg, antislavery was only “the stalking horse for more practical causes.” This is always a convenient thesis, often a plausible one, frequently a trick devised to put us out of the right way. Seeking the “real” materialistic, cui bono cause of any historical phenomenon enables us to ignore the professed purposes of the actors themselves, and thus perpetuates a sort of conspiracy theory or pareidolia method of history. It’s a favorite of such as Howard Zinn, who seek to ignore or hide the ideological factor in historical events in the service of a broader propaganda campaign. That’s not to say that materialistic self-interest is never the right answer on the history test; it’s certainly a common human motivation. But we should always beware anyone who tells us that an historical figure who said he believed X, acted to promote X, fought the enemies of X, sacrificed other interests to X—didn’t really believe X, but only said it to disguise his real interest in Z. It’s always equally likely that the person who says this is seeking not the truth but the denigration of X in his own time....

But for Stromberg, antislavery, which wrecked the chances of compromise, was really the work of northern agitators—where have we heard this before?—because capitalists wanted rid of slavery so they could get subsidies and tariffs: “railroads represented the biggest new business opportunity, provided large-scale government subsidies (state and federal) were available. Northern railroad promoters and land speculators, many based in New England, worked both to get subsidies and remove obstacles. On the removal side, some of them, like John Murray Forbes, donated money to John Brown’s good works in Kansas apparently to put pressure on southern opponents of internal improvements.”

Of course, there were wealthy businessmen who supported antislavery work—the Tappans, most obviously, and Gerrit Smith. But there were far more business interests who opposed any change in slavery. Cotton Whiggery was all about appeasing the slave power because agitation was bad for business. It was to forestall the economically deleterious consequences of justice that the nation compromised and prostituted itself for seventy years after the Miracle at Philadelphia. But we are to just ignore the massive moneyed interests that supported and perpetuated slavery; no, it was greedy corporate welfareists who made compromise impossible and are thus at fault for the war....

It is of course true that the Republican party of the 1860s was not a libertarian laissez-faire party. It called for subsidies and tariffs and central banking. From this we are expected to fallaciously conclude that southern Democrats opposed these ideas out of a commitment to free markets....

Stromberg tells us that Yankee businessmen were determined to preserve the union for economic gain (evidently southerners never considered such ignoble motives)...

From his distorted mass of secondary source quotations, Stromberg concludes that the Republican Party’s “definition of laissez faire...would run as follows: open-ended, active federal assistance for connected businesses through tax money, favorable statutes and legal rulings, and other institutional favors, with no corresponding obligation of these businesses toward society or even the State itself. So assisted, businessmen would make big bucks and accumulate capital, thereby greasing the wheels of progress and development.” (Interesting, that last bit. Does Stromberg think industry does owe an “obligation” toward “society or even the State itself”? Does he oppose “favorable statutes and legal rulings,” by which, the context makes clear, Stromberg means lawful enforcement of contract and property rights? Is Stromberg a believer in free markets in the first place?)

Where to begin? "We are expected to conclude..." Ah, the passive voice. Just who, supposedly, expects "us" to conclude that the Confederacy was devoted to free markets? I see no indication in Stromberg's article that he expected any such thing, let alone to suggest that "ignoble motives" were lacking south of the Mason-Dixon Line. To borrow a phrase from Sandefur, "When did I say any of these things?"

And what "context makes clear," exactly, that Stromberg, by "favorable statutes and legal rulings," means "lawful enforcement of contract and property rights" -- as opposed to special privileges and immunities? As far as I can tell, what Sandefur calls a "clear context" is actually a Rorschach test, an empty vessel for Sandefur to fill with whatever he wants to read into it. Is it a plausible reading? I don't think so. The idea that corporate lobbyists might push for "statutes and legal rulings" that promote their interests at the expense of the taxpayer, or of general justice and equity -- well, that's not exactly a stretch, now, is it? Were the railroad land grants "favorable statutes"? How about the industrial tariff? How about the patent laws, under which so many industries were cartelized? I venture to say that Stromberg's more a believer in genuine free markets than Sandefur is.

Sandefur also makes this historical claim about the right of secession:

The Constitution is not a treaty among basically independent states, which somehow retain authority to break up that treaty; on the contrary, it is a constitution of the whole people of the United States. States basically have no individual relationship to that union and cannot unilaterally declare themselves independent of it.

Since he doesn't allow comments under his posts, I sent a response by email (I've numbered the items he responds to below for greater ease in tracking the debate point by point):

(1) Your bald assertions about secession and sovereignty are based on second- or third-hand historically illiterate arguments borrowed from Daniel Webster and Joseph Story.

(2) That the Constitution was ratified by the people of the U.S. as a whole, and that states had no individual relationship to it, is refuted by no less an authority than the Constitution itself, in the ratification provisions of Article VII. As James Madison pointed out in the Federalist, no state became a member of the union until its own ratifying convention had voted to do so, regardless of how many other states joined. The Constitution specified that it would go into effect when nine members of the supposedly eternal former union had ratified it -- but only between those states that had, individually, ratified it. (3) The decision to ratify and join the union, Madison made absolutely clear, was a decision made only by the people of an individual state, and binding no one but themselves. North Carolina and Rhode Island both remained de jure independent sovereign states until well in Washington's first term, before they decided -- on their own authority -- to join the union. That individual states came into the union only by their own internal votes, and not by a majority vote of the union as a whole -- and that some individual states remained outside the union for some time after it was formed -- is a rather inconvenient fact for you, Story, Webster, Lincoln et al to deal with, I'm afraid.

(4) Interesting, also, that you denounce as "conspiracy theories" all suggestions, like those by Howard Zinn, that any government action might have "real" ulterior motives besides the stated idealistic justification of the actors.

(5) So I guess the GOP never adopted the corporate mercantilist economic policy of internal improvements, a high industrial tariff, and a national bank, as suggested by Lincoln's "beau ideal of a statesman Henry Clay." I suppose all that stuff about the Gilded Age GOP and the government being bought out by railroads is just left-wing conspiracist raving. I suppose the Tonkin Gulf Incident was real, and anyone who suggests otherwise is in the same category as David Ickes and Lyndon LaRouche. I suppose Woodrow Wilson was right to lock up all those deluded conspiracists who said WWI was a "rich man's war and a poor man's fight."

(6) By the way, the fact that the Democratic Party of the slaveocracy was attached to feudal ideals, or also favored mercantilism, does not alter the validity of Stromberg's characterization of the motivation of leading circles in GOP. (7) If you think opposing Lincoln and the GOP makes Stromberg a sympathizer for the South Carolina fire-eaters, I'd call that an unwarranted inference. Haven't you ever heard of the phrase "a pox on both their houses"? (8) I know plenty of left-wing free market libertarians (myself among them) who would challenge the U.S. government's right to prevent secession, but who would also strongly sympathize with Nat Turner, John Brown, and similar figures. (9) And while I consider secession from the union as such to be legitimate, as a mirror image of the process of accession to it, I would reserve my own active sympathies for a secessionist movement in New England to avoid complicity with abominations as the Fugitive Slave Act.

(10) And the fact that there were sincere abolitionists in the GOP -- radical Republican Altkaempfers from the New England and Burnt Out District of the 1830s and 1840s -- doesn't alter the fact that the party mainstream had been taken over by plutocratic interests seeking to promote a mercantilist industrial model. No more does the existence of figures like Roehm and the NSDAP left alter the nature of the deal between von Papen and the German industrialists in 1933.

Sandefur took up the gauntlet with a post helpfully entitled "A kook responds to my civil war articles." In response to item (1) he writes:

Great way to start out an email you want taken seriously.

Well, what can I say? Sandefur himself opens up his posts with such gems as "pathetic spectacle" and "fakes like Joseph Stromberg." So I can see why he chides me for departing so drastically from the tone of high seriousness he'd set in the debate heretofore. From now on, I'll try to follow the example of dignity and decorum set by Mr. Poopyhead.

It is of course up to readers to decide whether or not my views are “historically illiterate.” I can attest that, although a great admirer of Daniel Webster, I’ve read very little, if any Joseph Story. But my views on these matters come from reading the original sources.

The "original sources" cited in his posts consist almost entirely of bare assertions, in the most general terms, written years after the fact.

He continues, in response to item (2):

This is a recitation of what is probably the strongest argument that can be made to support the assertion that the Constitution is a league among essentially independent sovereignties. But still it fails. Certainly it’s true that the Constitution only bound the people of those states who ratified it, but that does not make the Constitution any less a Constitution, or make it a league among sovereignties.

It does, at the very least, prove the falsity of Sandefur's statement that "the states have no individual relationship to [the] union." If it bound only the states whose separate peoples ratified it, that sounds pretty damn individual to me.

The Constitution was not approved by even a single state acting as a state government; it was approved by the people of the United States, as declared in its preamble, who acted in special ratifying conventions—not in state legislatures.

Strawman. Saying a state acted "as a government" and that it acted "as an independent sovereign body politic" are two different things. According to Edward Morgan and Gordon S. Wood, the concept of sovereignty as being exercised by the people directly, rather than embodied in practically sovereign governments except in revolutionary times, was novel in the 1780s. James Wilson first applied it, in his federalist writings, to the distinction between the American people and the state governments, arguing that "the people" (and implicitly the people of the nation and not the peoples of the states) rather than "the state governments" were sovereign. But Wilson's distinction between governments as mere municipal corporations, versus the people in whom general sovereignty was vested, could cut both ways, applying just as well to the sovereign people's of states as to the sovereign people of a unitary nation. So the proper question is not whether the sovereign ratifying authority was the governments of the states or the people of the union, but whether the sovereign ratifying authority was the several peoples of the states as independent bodies politic or the single people of the United States.

And the fact that the ratification vote took place in conventions rather than in state legislatures has no bearing on whether the states as bodies politic were the parties to the Constitution. The fact that extraordinary Conventions restored Charles II to the throne and invited William and Mary to assume the monarchy, rather than the regular Parliament, didn't alter the fact that both bodies were making decisions for England as a body politic. By the 1780s, based on the English precedents of the seventeenth century, Americans had come to see conventions as a vehicle for the direct exercise of popular sovereignty in a more fundamental way than an ordinary elected government. Asserting that the people who thus exercised sovereignty were the unitary people of the nation rather than the several peoples of the states is begging the question.

As for the Preamble, this is typical Straussian Constitutional exegesis -- akin to Mortimer Adler abandoning Blackstone's standard rules of common law construction and instead determining the inner meaning of the Constitution by taking all the capitalized abstract nouns in the Declaration and Preamble and looking them up in the Great Books' Syntopicon.

The actual reason the Preamble spoke of "the people of the United States" instead of enumerating the states individually is quite pedestrian. The original draft of the Preamble, as it came out of the Committee of Detail on August 6, 1787, read: "We the people of the States of [names enumerated] do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity." The next day the Preamble was accepted as it was, with none objecting. Following several weeks of debate and amendment, the August 6 draft was sent to the Committee of Stile for final polishing of the language. When it came out on September 12, the Preamble had been altered to its present form: "WE THE PEOPLE of the United States...." The new language was accepted without debate, which would have been unlikely, had the author intended it to reflect a substantive change in the nature of the union.

Antifederalist Luther Martin, in the Maryland Gazette of June 3, 1788, cited the Federalist justification for this: "It is said the accession of nine States being sufficient to render it binding required this." In other words, it would have been embarrassing as hell if only nine states ever ratified, and the Preamble to the instrument of union was written in the names of four non-members.

The terms of any agreement might specify that certain procedural conditions must be satisfied before the whole agreement goes into effect—for example, people often make agreements that go into effect only when a certain number of other people sign on—but this does not change the character of the agreement, which is between the people, and not between the states in their corporate capacities. That is the crucial point; it marks the difference between a treaty or league on one hand, and a constitution or nation on the other.

This argument doesn't wash. If the agreement is between the people of the United States, as opposed to the peoples of the several states, then a majority vote of the people of the whole should bind all the states. As Madison stated in Federalist 39, the compact was not one by a majority of the people of the U.S. as a whole, but between the peoples of the ratifying states as bodies politic.

In response to item (3):

It’s not inconvenient in the slightest. It in no way undermines the conclusion that the Constitution derives its authority, and the federal government its sovereignty, from the whole people of the United States, rather than in a delegated way from the state sovereignties. John Marshall—who knew a thing or two about the Constitution—answered this argument this way:

This mode of proceeding was adopted; and by the convention, by congress, and by the state legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively and wisely, on such a subject, by assembling in convention. It is true, they assembled in their several states—and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass. Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments.

This, apparently, is one of those "original sources." It's a generalized assertion, years in retrospect, by a partisan Federalist. The closest thing that passes for an argument is a denial that voting state by state implies that states as such acceded to the Constitution -- an argument no partisan of state sovereignty actually made. And it's also another iteration of the strawman equation of the states as sovereign bodies politic to the state governments.

The fact that the people of Rhode Island didn’t choose to join in the union known as the “people of the United States,” and that the federal union respected that fact, hardly proves that the Constitution is a treaty or anything.

No. It just proves that there is -- ahem -- an individual relationship between the states and the union, and that their individual relationship to the union is determined entirely by the sovereign will of the people of that state alone. It proves that the people of a particular state only became part of the people of the United States by their own choice, and that their decision to do so was entirely individual. Even if 100% of the population of the other twelve states agreed on ratification, the fact that Rhode Island voted against ratification was enough to prevent it becoming part of the United States, until it decided -- by its will alone -- to ratify. In other words, the parties to the Constitution were the several peoples of independent states.

Contra item (4):

I did not denounce all such suggestions. What I said was that there are two ways of looking at history: as basically about ideas, or as basically about interests. Those who seek to interpret it in the latter way typically portray ideas as really just camouflage for interests, or as devices used to accomplish or rationalize interests. This is often a successful and helpful way of looking at history. But it also has the same weakness as a conspiracy theory—it evades disprovability and allows a reader to attribute whatever motive he wants to the actors, while ignoring completely what the actors actually said or did on their own accord. (Howard Zinn was particularly a master of this; never letting any facts or reality get in the way of his absurd political ravings.) Certainly there are times when people have real ulterior motives that they disguise in idealistic rhetoric. But the opposite is also often the truth, and one must always take care when looking at historical events not to discard the idealistic rhetoric reflexively, and pat oneself on the back for ultra-sophistication on the grounds that one is much too clever to believe in ideals. Sometimes people’s motives are just what they say they are.

Um, no. Sandefur didn't say it had "the same weakness as a conspiracy theory," despite his effort to walk it back. He used much stronger language, and flat-out accused Stromberg of conspiracizing. He in fact asserted that looking for the "real," or material, reason behind people's actions, in preference to their professed intent, "perpetuates a sort of conspiracy theory." Not that it had "the same weakness as a conspiracy theory," despite being "often a successful and helpful way to look at history." That it perpetuated a conspiracy theory. Damn well sounds like a denunciation to me.

And attributing ulterior motives to political action does not at all avoid falsifiability, or entail ignoring what they actually said and did. More often, it entails comparing what they said in public to what they said in private, or what they said to what they did. As Stromberg suggested by private email, "I think a great deal has been said about what people did."

What's more, it doesn't even require hypocrisy or bad faith. Given the dominance of a particular ideology as a system of legitimization in a society, its language may be used by very different groups, with very different operational meanings, to legitimize a wide range of interests.

Witness the use of free market language by some right-wing libertarians as an apologetic for corporate power, and contrariwise -- by us left-wing free marketers at Center for a Stateless Society and Alliance of the Libertarian Left -- to point out the essential statism of corporate capitalism. Witness the use of Marxist language and symbolism in the workers' uprisings in East Germany in 1953 and Czechoslovakia in 1968, with the workers organizing factory committees and calling out "All power to the workers' councils!" The very symbolism can be used as an apologetic for a system of power and the interests it serves, or can be turned into contested ground by those who "use the master's tools to tear down the master's house."

Contra item (5):

When did I ever say any of these things? But it is not necessary to believe that the Republican Party was the party of laissez-faire (as I noted, they were not) or any of these other irrelevancies, to believe that the American Civil War was, at bottom, about slavery; that the southern states had no legal right to secede, nor any legitimate claim to the right of revolution; that the Confederacy really did want to erect a basically totalitarian fascist slave state, and that the union’s victory and the ending of slavery were, with qualifications, essentially and wonderfully good things.

It's also not necessary to be a "neo-confederate" or to sympathize with slavery in any way in order to believe that the United States had no legitimate authority to prevent secession.

And given that Stromberg's article was entirely on the effects of the war, and victory by the side that actually won, on the national economic system, it's quite disingenuous -- not to say scurrilous -- to infer from this any particular position toward the Confederacy or the slave power.

In any case Sandefur is himself liable to charges of conspiracizing, given his effort to discover a neo-confederate "real agenda" behind Stromberg's treatment of the industrial interests in the GOP.

Oh, and wait -- we're supposed to only be attacking people for what they actually said, now? Please pick a set of rules and stick to it.

Sandefur omits item (6), a sentence which by rights should be included in the quote at item (7). The omitted sentence challenges Sandefur's mode of argumentation, which suggests that the pathologies, abominations and injustices of the Confederacy have any bearing on the validity of Stromberg's treatment of northern industrialists, or that his failure to address them in an article on the primary subject of the war's effect on the national political economy says anything about his alleged sympathies to the Confederacy. Anyway, re item (7) Sandefur writes:

If that were all that Stromberg did, that would be one thing. But Stromberg’s article goes far beyond that. It is a long piece—written, like your own email, as a string of non-sequiturs, and drawn almost entirely from secondary sources—and consists of almost nothing but baseless assertions (or spin) against the union—while very carefully ignoring the south’s acts or character. It is a very old propaganda technique to point accusatory fingers only at one side, while remaining silent about the other, so that one can pretend objectivity while really conveying a wildly inaccurate message. That’s what’s going on here. Stromberg wants to argue that the north was wrong in the Civil War, that the south had the right to secede, that slavery was—well, we should just ignore slavery, mostly—that the north was the aggressor, that Lincoln did all sorts of nasty things, and that everything wrong with the modern state is Lincoln’s fault.... He attempts this by disregarding the law, the facts, the philosophy, and, most of all, by trying to distract readers into forgetting who and what the enemy really was. Stromberg does not say a pox on both houses; he tries to cast a pox on one house, only one house, and that was the house that, whatever its real faults, stood for liberty and equality. Fortunately, he fails in that attempt.

As Stromberg pointed out by private email, "the house that won made the future; the kind of future they made is subject to criticism." And he also pointed out that he largely ignored the South because the article was about the political economy of the North. That doesn't mean the Confederates were good guys. The Confederacy, like all states, was the executive committee of a ruling class (before Mr. Sandefur latches onto this, I'm an anarchist not a Marxist). And the ruling class -- the slave power -- was a particularly odious one. The Civil War was a war between two bad guys -- two states.

For what it's worth, I believe the primary, immediate cause behind the Civil War was neither northern agitators nor plutocratic capitalists, but the stupidity of the southern fire-eaters. In the 1850s the national government was overwhelmingly dominated by a southern-led Democratic Party that differed mainly on whether it was batshit insane pro-slavery or just mildly pro-slavery. The country was locked into a situation where a constitutional majority sufficient for abolishing slavery would have been impossible for the foreseeable future. The only thing that could have ruined this sweetheart situation for the south is if the batshit insane pro-slavery people were willing to split the Democratic Party. And secession just meant abandoning the possibility of any expansion of slavery into the Guadalupe-Hidalgo territories at all, which (given that the national debate was over slavery in the G-H territories) was an obvious case of cutting off one's nose to spite one's face. Or maybe snatching defeat from the jaws of victory.

If Sandefur wants primary sources, then I challenge him -- no, I double dog dare him -- to read Claude H. Van Tyne's magisterial "Sovereignty in the American Revolution: An Historical Study" American Historical Review 12 (April 1907). Van Tyne actually agrees with Sandefur that a state's ratification was a permanent promise and that secession was impermissible -- but he makes mincemeat, based on intensive use of primary sources from the 1770s and 1780s, of Sandefur's arguments about the source of the Constitution's authority.

Please, Mr. Sandefur, read this article. And refute his arguments based on actual primary sources. And refute them on the basis of fact -- no mystical incantations after the fact from John Marshall, no Straussian hocus pocus from Harry Jaffa.

For that matter, if Sandefur likes primary sources, he might like this draft chapter of mine: "The Ultimate Source of Sovereignty in the American Federal System."

It's based on many months of reading in the polemical literature of the 1760s and 1770s, the Journals of the Continental and Confederation Congresses, letters of members of the Continental Congress, the collected charters, constitutions and fundamental laws of the states, Madison's record of the Federal Convention, Elliot's debates in the ratifying conventions, assorted collections of federalist and antifederalist literature, and the records of the First Congress. I have gone through every major nationalist argument and relentlessly fisked it, point by point, based on this reading in primary sources.

Sandefur omits the material in item (8), and then writes in response to item (9):

Two points. First, secession is not a mirror image of accession, because accession included certain promises in favor of protecting the rights and interests of the whole people of the United States. To name only one example, upon entering the union, the people of a state promise to respect the privileges and immunities of citizens of the several states; in exchange, the whole people of the United States promise to guarantee to that state a republican form of government. These promises cannot be simply undone, any more than a marriage can be simply undone. One can accomplish a divorce—through a forward-looking process of law—and a state can leave the union through a forward-looking process of law (that is, through constitutional amendment). But one cannot lawfully just ignore the fact that one is married, or accomplish a divorce through some magical formula that has no relation to the law, and one state cannot merely unilaterally leave the union by some process unknown to the Constitution. Incidentally, although New Englanders had no legal right to secede for any reason, I will agree that the Fugitive Slave Act would have given them much better grounds for revolution than the south ever had.

Whether or not states have a right to secede based on the nature of ratification, or whether there was an implied promise of perpetuity, is something that must be inferred from the history of the ratification process and the "structure and implication" of the document itself, since there is no explicit statement either way within the text.

But at the very least, the actual historical record shows that the interpretation of ratification history from which Sandefur attempts to infer a position on the legitimacy of secession is a failure. The historical claims he makes to prove the illegitimacy of secession -- based on the supposed identity of the people of the U.S. as a single entity as the ratifying party, and on the denial that the people of any particular state had an individual relationship to the Constitution -- can be shown, on the basis of the actual historical record, to be fallacious.

It's interesting that Sandefur slips and interprets the restrictions on state power in Article I Section 10 as stipulations by the people of a state promising not to do those things. Please reread your talking points!

The nationalists normally interpret those prohibitions as a set of prohibitions against a state by the people of the United States. It's the advocates of state sovereignty, of the states as the ratifying parties, that interpret them as promises by the people of a state.

Either argument, without other context, is plausible. But to determine which is probable requires recourse to the history and structure of the document.

The most plausible explanation of who's promising what, in my opinion, is that by ratifying the Constitution the sovereign people of an independent state are agreeing to create a new municipal corporation -- the United States government -- which is authorized to operate on their soil alongside another municipal corporation -- their state government -- so long as they remain accessories to the compact. The sovereign people of that state agree to delegate to the new municipal corporation the right to exercise on their soil the powers delegated in Article I Section 8, so long as it refrains from exercising those enumerated in Article I Section 8, and to refrain from themselves exercising those powers enumerated in Article I Section 10 on the condition that the peoples of the other accessory states likewise forbear. And they agree to do all these things, again, as a sovereign commitment, so long as they remain accessories to the compact. The powers of both the state government and the federal government, as municipal corporations operating on the soil of a state, derive from the sovereign people of that state.

Sandefur also ignores the fact that the states which agreed to join the new union on the accession of the ninth state, regardless of whether the remaining four came along for the ride, themselves seceded from the union of the Articles despite its explicit provision for perpetuity.

On item (10):

So the Republican Party was basically like the Nazi party. I see. Mr. Carson doesn’t want us calling him a Lyndon La Rouche type, but isn’t doing a very good job of it….

There should be another Internet convention to cover illegitimate and demagogic invocations of Godwin's Law.

Ahem. The GOP was "basically like the Nazi party" in terms, and only in terms, of the point of comparison specifically addressed by the analogy. You do understand how analogies work, right? Or is this just a case of disingenuously pretending to be more obtuse than you are in order to score demagogic debating points?

Note. Stromberg issued a rejoinder here. And Sandefur, in turn, responded here.

If you look at the points raised Stromberg's piece and the ones actually addressed in response by Sandefur, it's hard to avoid thinking of Lincoln's homely anecdote about the Jesuit who, accused of killing three men and a dog, triumphantly produced the dog in court.

Note 2 (May 31). I mistakenly clicked "publish" several weeks ago before I'd completed the draft. Although I removed it quickly, Sandefur responded here. No response to date re the finished version.

Addendum. In Sandefur's rejoinder linked immediately above, he treats Adams of Novanglus as a foil for Adams in 1776. The latter Adams, as quoted in Jefferson's records of the Congress from July 30-Aug. 1, 1776, opined that "The confederacy is to make us one individual only; it is to form us, like separate parcels of metal, into one common mass. We shall no longer retain our separate individuality, but become a single individual as to all questions submitted to the confederacy." "Thus," Sandefur concludes, "Thus even if Adams envisioned the British Empire as a league of sovereignties in 1774, he did not envision the American colonies as a league of sovereignties in 1776."

Two points:

1) The question is not simply what Adams believed at either time. My reference to Novanglus was not merely to Adams' opinion of the nature of the Empire, but to the reasoned and evidenced case he made for that opinion. As for his opinion quoted in 1776, we need only evaluate it in light of the record of what the Continental Congress actually did, and of the extent to which it relied on the states to authorize and execute its resolutions, compared to what the states did on their own authority as independent sovereigns. Here I refer Mr. Sandefur, once again, to the enormous volume of evidence in Van Tyne's article.

2) Adams' quoted opinion as to the effect of the Confederation in throwing the colonies into one mass is of questionable relevance considering that there was, in fact, no Confederation in existence at the time of Independence, and that one was not in legal effect until 1781. It's useful in this regard to read Adams' quoted opinion in light of his own speculation from June of the same year: "that we shall be obliged to declare ourselves independent States, before we confederate, and indeed before all the colonies have established their governments."

It's a good thing I'm "self-refuting"; if this is an example of Mr. Sandefur's calls a refutation he'd do better to leave me to refute myself, I think.

9 Comments:

Blogger Louis B. said...

Anarchism appears to be outside Sandefur's comprehension, judging by his portrayal of libertarianism as divided between Randians, Friedmanesque neoliberals, and Evil Racist Lewnits.

Love these non-C4SS posts by the way.

May 29, 2011 9:01 PM  
Blogger joe4 said...

Do you have the drafts of the other chapters of the work "The Ultimate source of Sovereignty" came from? I see capters 1 and 7 on your other site, but was wondering if you have completed the other chapters.

May 31, 2011 12:59 PM  
Blogger Kevin Carson said...

I've got the manuscript drafts through Chapter Eleven -- around 500 typewritten pp. -- but never gotten around to keying them in. Definitely something I've got to do one of these days.

May 31, 2011 1:48 PM  
Blogger joe4 said...

I would love to read those.

May 31, 2011 1:59 PM  
Blogger Sheldon Richman said...

I am impressed at the breadth and depth of your knowledge!

June 01, 2011 7:57 AM  
Blogger Kevin Carson said...

Thanks a lot, Sheldon.

It's a good thing my case is "self-refuting." Otherwise I'd have to live in dread of another devastating quote from one of Marshall's majority opinions.

June 01, 2011 9:20 AM  
Blogger Kevin Carson said...

BTW, I notice Sandefur is now publishing reader mail from Paul Marks (whom Thomas Szasz apparently never met). I'll make popcorn.

June 01, 2011 9:31 AM  
Blogger David R. Henderson said...

Very informative, Kevin. Thanks.

June 07, 2011 8:20 PM  
Blogger Tim said...

This time I'm gonna chime in your side, Kevin. I find all the hullabaloo about the legality of secession beside the point, because it doesn't follow from the legality of secession that the conquest of the South was illegitimate. A perfectly good case can be made for that war even under the assumption that the South was and always had been a completely independent sovereign state.

June 09, 2011 2:14 AM  

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