On this 4th of July, as we celebrate our independence, I think it is an appropriate time to discuss the topic of states’ rights. This topic has been brought to the forefront by recent events, especially surrounding the Supreme Court. Just today I saw a poll that showed that 33% of Americans support states’ rights. This is a sharp increase over prior numbers, and was attributed to the recent rulings on homosexual “marriage” and Obamacare.
There have been other times like this in our nation’s history, where states’ rights have been promoted in the face of tyranny. The most prominent example would be the War for Southern Independence, known more generally as the Civil War.
Such times are steeped in controversy surrounding complex issues. And often, it seems as if the issue of states’ rights is only brought into the fray in desperation. That would seem to be our current case, as those who disagree with the way in which our leaders are directing our country turn to the states to aid them in civil disobedience and opposition.
Thus all to often, the issue of states’ rights is only examined within the context of an already heated debate. So much so, that it is often confounded with the other issues at hand. This is true of many peoples’ view of the Civil War, to the extent that secession is viewed as the equivalent of slavery and villainy. This in turn contributes to a vicious cycle, in which we become ever more timid to bring up the issue of states’ rights in times of relative tranquility, lest we should brew a storm (or be accused of doing so). It is therefore very seldom, if ever, that we are able to have a free and open discussion of states’ rights.
So on this holiday, as we set aside our politics in favor of patriotism, let us seize the opportunity to consider this important issue. In doing so, we must lay aside our current circumstance, and the circumstances of history which are so often associated with this issue. We must lay aside the companion emotions as well, and try to adopt the reasoning mind of the inquiring scholar.
What is States’ Rights?
No, the heading isn’t a typographical error. We do not ask the question, “What are states’ rights?”, but a much more fundamental one: “What is states’ rights?” Examining the particulars of what rights states may or may not have is not our current scope. The question which we will examine, and which is antecedent to that one, is the basis for and validity of the very concept of states’ rights.
This concept draws on an even deeper concept, that of rights itself. We might start by considering the definition of a right:
A moral or legal entitlement to have or obtain something or to act in a certain way.
This definition recognizes two different kinds of rights: moral, and legal. Our country is founded upon the self-evident truth that mankind has a Creator who has granted him certain rights. These rights come from God, and therefore we might indeed refer to them as moral rights. Moral rights, as morals themselves, are given by God, and are therefore universal in application. They go beyond any legal or human framework, which is why they are separate from legal rights.
Beyond these rights granted to mankind by God, we may also be granted certain legal rights within a given legal system. America’s founders understood the necessity that any such system always be in perfect harmony with the rights granted by God. Because God is sovereign over all, the rights which he has granted necessarily trump any actions of ourselves or our legal constructs. Nor do those in legal authority have the power to take those rights away, because they are inferior to the one who granted them.
Within a legal system, we may also construct abstract entities that are granted certain rights. This is the nature of the case which we now examine, that of the rights of states within the Union.
The Grantor of Rights
Having considered the nature of rights, we must recognize that the grantor of a right is fundamental to its character. We must therefore consider who has granted states’ rights, if indeed any such things exist. To answer this question, we should look first to the pattern of God-given rights. God, as our Creator, granted rights to us, his children. It is only logical that the creator of a thing must be the one to grant it moral rights. Indeed, he is the only one who has the power or right to do so. It would be very strange indeed for the creature to grant rights to his maker, or the children to their father.
Thus, in searching for the grantor of states’ rights, we would do well to begin by looking for the creator of the states.
This approach is backward to that which is generally taken. People usually assume that rights are granted not by one’s creator, but by the current legal authority that one is under. But this is contrary to the beliefs upon which this nation was founded. The founders understood that there are other rights beside legal ones. They did not deny legal authority, or that legal authority could grant them rights, and revoke those rights which it had granted when it saw fit. Rather, they asserted the superiority of God-given rights, of Creator-given rights, to any legal authority.
States’ rights are usually discussed under the presupposition that all rights states might have would be granted by the Federal Government. The discussion is limited to what rights, if any, are granted by the current legal authority for the states. Thus only half of the picture is analyzed, leaving the most important side of the topic unexplored. Creator-given rights are by nature superior to legal rights. Should we not therefore also consider the possibility that the states might be granted certain rights by their creator(s)?
Who Created the States?
We must ask then, who created the states?
This is not a legal question. We aren’t asking who created the states in terms of the current legal authority. We are asking who created the states in the most practical sense. And the answer is clear, both historically and legally: the states were created by the people.
The usual approach to states’ rights assumes, in effect, that the states were created by the Federal Government. Yet this is manifestly untrue. The states were not created from parts of the Federal Government, but the Federal Government was created by the states—by the people. The people created the states, and then through them created the Federal Government.
This fact is demonstrated in many ways, both historically and by our present legal institutions.
Historically, we all know that the states started out as colonies. Colonies founded by, and comprised of, people. This is how all of the states were created (except for West Virginia). The people created their own legal institutions, and then brought those institutions under the legal authority of the Federal Government as states.
One might argue that many of the original thirteen colonies were actually created by Britain. However, this conflates legal authority with moral sovereignty. The colonies may have originally resided under the legal authority of the British Crown, but they were not under its moral sovereignty. As the founders so eloquently explained in the Declaration, the people are morally sovereign under God. They are the ones with the superior rights, and nothing a government does has any moral authority without their consent and support. Thus, while the colonies were established by the legal authority of the British Crown, it is only the moral authority of the colonists that acted as the sovereign force behind the creation of those colonies.
Legally speaking, the Constitution, the highest law of the land, is unambiguous in demonstrating that the people are the creators of the states. Article 4, Section 3 says:
New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
First, note that there is nothing here prescribing how states ought to be created. New states aren’t created by Congress, they are only “admitted by the Congress.” Nor does Congress have the right to create states by splitting or combining existing states, without the consent of the people of those states. The right and power to create and destroy states is firmly in the hands of the people.
A Hierarchy of Sovereignty
The founding of our country was based on the idea of a hierarchy of sovereignty. This concept was derived from the basic teachings of scripture. In this hierarchy God is sovereign. He created man in his own image, and gave him dominion, and vested him with certain unalienable rights. Therefore, man is sovereign under God. The people then acted together to create the states. Therefore the states are sovereign under the people. Then the people acted through the states to create the federal government. The states created the federal government, and it is sovereign only under them—and under the people.
The intent of the founders was not to insert a layer of sovereignty between the people and the states. This is manifest by the fact that all powers not vested in the federal government were reserved for the states and for the people. The federal government doesn’t represent an arbiter sandwiched between the people and their states. Rather, it represents a contract, drawn up by the states, to create a federal institution of government to which certain powers are collectively delegated for the common good of the people of the several states. The preamble to the Constitution says it well:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
We the People
The Constitution’s famous first words are “We the People,” yet it was the states that sent delegates to the Constitutional Convention, and the states that had the power of ratifying it or rejecting it. Why is this?
The founders did not put a difference between the people and the states. The states are the representatives of their respective peoples. Nay, the states are the people, and are vested with all of their moral sovereignty.
Therefore the question is really not one of states’ rights, but of the rights of the the people when organized into a state. It is about the rights of man. If the people of a state vest one of their God-given rights in that state, no one but those people can revoke it. Only the people of the state have that right, have that power. And they may grant or revoke those rights from their state at will.
We might have to consult a Constitutional lawyer to answer the question of what legal rights a state has. But we need only consult the people of a state to know what moral rights that state has. The federal government has no more right to infringe upon the God-given rights of the people when they have vested them in a state than when they have not.
This cuts right to the heart of the issue, and reveals those who argue against states’ rights from a legal perspective for what they are: tyrants, whether they realize it or not. One cannot celebrate Independence Day without celebrating states’ rights. One cannot believe in God-given rights without believing in states’ rights. Only if the federal government can dictate how we exercise our rights can it tell us that we cannot vest those rights in the states which created it. As every true-blooded American knows, the duty of the federal government is not to regulate the people’s rights and how they are expressed, but to protect and defend the free expression of them. Our rights come from God, not the federal government, so it has no authority to tell us how we should use them.
Yet this leaves open the question, “How we should use our rights?” What rights should the people exercise through the states? While some of our rights can be exercised collectively, they are granted to each of us by God as individuals, and are usually exercised at the individual level. For this reason the question of states’ rights is usually focused around secession, or otherwise rebelling in some way against the actions of the federal government.
It would be remiss therefore, not to consider the question of whether states have the right of secession. Or, more precisely, whether the people of a state have the right to secede. Remember that we are not asking whether the people have a legal right, a Constitutional right, to secede. We are asking whether they have a moral right, a God-given right, to secede.
When properly framed in this way, the question hardly requires an answer of more than one word. And were it not Independence Day, we might stop there. But on this day, as we celebrate the secession of the thirteen colonies from Great Britain, we must take a moment to consider more deeply the answer which our founders gave to this question, an answer which they sealed with their own blood. An answer to which they pledged their lives, their fortunes, and their sacred honor.
For the founders not only believed that the people had the right of secession, but they believed that right should be exercised through the states. And this they did when they signed the Declaration of Independence. If one will agree with the founders that they had the right to independence from Britain, then he must also believe that the people of every state have the right at every moment to independence from all others. As the founding fathers declared, the people have the right to alter or abolish their government, and institute a new one as they see fit. They further urged the conviction that there is a time, when it is more than a right, when it is a duty of a people to throw off a government.
There will be those who argue that the right to abolish a government must only be exercised by the agreement of all of the people. But this is to say that it is a right which the people can only exercise collectively, and within the confines of the current legal system. Let such a one read the closing of the Declaration of Independence:
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 Honor.
If one state may not secede without the permission of the other 49, then the thirteen colonies could not have seceded without the consent of the state of Great Britain and its many other colonies and holdings scattered across the globe. This state of things would amount to nothing more than the slavery of each individual to the collective will of the people. This is the very concept upon which Nazi Germany was built. It is the foundation of Marxism, socialism, communism. It is, indeed, the very antithesis of what the founders both practiced, and so eloquently preached in the Declaration of Independence:
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.
Today, we celebrate freedom from tyranny. Today we celebrate Independence. Today, we celebrate states’ rights. Today, we celebrate secession.