James Wilson, one of the first associate justices of the Supreme Court, and a prolific political and legal theorist, once wrote:
“The truth is, that, in our governments, the supreme, absolute, and uncontrollable power remains in the people. As our constitutions are superior to our legislatures; so the people are superior to our constitutions. Indeed, the superiority, in this last instance, is much greater; for the people possess, over our constitutions, control in act, as well as in right.”
This was not an uncommon position among the Founders. For instance, James Madison argues in Federalist #46 that the people of the states may limit the power of the federal government by disquietude, disobedience (“repugnance” in the English of the time), and by refusing to cooperate with the officers of the federal government.
The Founders’ Attempts to Limit State Power
This notion, that power originates in the people, is attractive. It provides a clear justification for disobedience, nullification, and non-compliance. But at the same time, Wilson calls the power of the people “supreme, absolute, and uncontrollable.” On the surface, this seems to conflict with the ideal of limited government, since, if the people have absolute power, they might create a constitution that delegates absolute power to the government.
However, Wilson is not arguing in favor of unlimited state power. On the contrary, he also writes that the purpose of a good constitution is to “insure peace, freedom, and happiness.” Therefore, he must be arguing that the people have supreme authority over matters of some limited scope. But how should this scope be defined?
The Founders mostly agreed the rightful powers of the state are limited. They favored a state apparatus with multiple tiers, with the smallest tiers–county and state–having fairly extensive (but still limited) powers and the largest federal tier having very limited powers, such as the power to ensure that people could move and trade between states.
At the same time, the powers delegated to the state typically included taxation and conscription, even though such policies do not derive from any legitimate power the people actually have.
In Wilson’s model, the people delegate power to the government through the Constitution. This authorizes state agents to act within specific limits.
People who wish to commit aggression will always aim for positions that give them legal justifications. Checks and balances attempt to pit different parts of the state against each other, providing outlets for the aggressive tendencies of state agents that limit state power rather than harming the people. However, these outlets are incomplete, and intelligent state agents can and do collaborate to thwart them.
Despite these issues, Wilson and others maintain that the ultimate power remains with the people. This strongly suggests that if the people decide that some state powers are usurpations, then the people have a valid reason for protest, noncompliance, and nullification. After all, it is their contract, and it seems inconsistent to allow state agents to define certain groups as subjects and enemies at the same time.
What Are the Powers of the People?
The idea that power derives from the people raises a question. What powers do “the people” legitimately have? And in a perfect world, what sorts of rules could they agree to without resorting to aggression? A list of such rules might look something like this:
- Clear rules for homesteading, and possible provisions for the security of private property
- To demand the fulfillment of private contract terms from other society members
- To preemptively designate certain actions as crimes or torts and provide methods for investigation and punishment
- Mutual free passage for members (at least) on designated pathways (to avoid private encirclement, see Block via Kinsella)
- The ability to punish or expel properly convicted violators, and for members to positively agree to support such sanctions in certain ways, e.g. by not harboring fugitives
- Exit rules designed to allow society members to secede and (ideally) take their property under most circumstances, e.g. as long as they are not currently under investigation for a crime
Worth noting is that each of the above provisions would have to be carefully delineated and not open-ended. Members would agree to specific and limited enforcement measures preemptively, avoiding coercion. The contract would have to be written in such a way that all members positively agreed to any long-term fees that might be in the contract. Any changes would have to be unanimously approved.
The last point, the explicit right to secession, is conspicuously absent from most social contracts, including the Constitution.
It is reasonable to argue that the right of secession is implicit in the Constitution. After all, if the people of the states agree to a compact — especially if, as Wilson argued, that compact delegates powers, rather than giving them — it seems obvious that they retain the power to leave it.
The Tenth Amendment makes this clear.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
In contracts with indefinite lengths, if no provisions for leaving the contract are provided, as is the case here, the parties may leave at will.
The problem is people generally think they need explicit permission from government to exercise their rights in direct contrast to Wilson’s assertion that “supreme, absolute, and uncontrollable power remains in the people.” That’s why they are looking for specific instructions for secession when none is necessary.
History has also shown that the Federal government will not accept the secession of dissident states. In fact, it has shown that it is more than willing to destroy hundreds of thousands of lives to prevent secession. However, it is wrong to confuse a rifle pointed at one’s head with an argument. The arguments clearly remain on the side of secession.
That said, why is secession so important? Why not simply change the compact from within? The reason is that, even with the best intentions, the interpretation of a long-term compact like a constitution will drift over time, as its interpreters change and as the language changes. Children cannot be assumed to agree to the terms of the compact. It is inevitable that some parties will find themselves in new circumstances or will find changes of interpretation to be unsatisfactory. To hold them in the compact against their will is a violation of their autonomy and the concept of consent.
In fact, Thomas Jefferson raised this question in a letter to James Madison in 1789.
“The question Whether one generation of men has a right to bind another… is a question of such consequences as not only to merit decision, but place also, among the fundamental principles of every government.”
The Founders made a valiant attempt to limit the power of government. Checks and balances and separation of powers were excellent innovations. The idea that all power derives from the people and is merely delegated, not given up, justifies all types of protest and disobedience. Indeed, more resistance to state usurpations is one thing that we definitely need!
But, at the same time, the Founders attributed to the people more powers than they actually hold. And once the agents of government begin to usurp power, people who wish to exercise power for their own benefits are drawn to these positions, leading to abuse.
We see that the nature of long-term social agreements has a fundamental contradiction. The original parties to the agreement had a certain interpretation, but it is impossible for that interpretation to remain consistent forever. Therefore, any such agreement must allow for members to exit, else they be held in bondage to agreements that are of no value to them.
History shows that the matter-of-fact understanding of secession at ratification was insufficient. The Virginia Ratification says, for instance, that “the People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression.”
The choice to leave out explicit rules for secession was clearly a mistake, because the malignant growth of the Federal government, and especially its role in educating the people, has led to the dangerous belief that they or the several states need permission to leave the compact that they created. As Wilson might have said, the people and states made the compact to delegate their powers, not to give them up forever. They retain the full sovereignty guaranteed to them by their Maker.