by Diane Rufino, July 18, 2016
A contract is a promise, or set of promises, between willing parties. The law of contracts is a body of law as old as the Anglo-American division of law and equity. When a contract is breached, law and equity provide remedies. In fact, the definition of contract includes the phrase “for the breach of which the law gives a remedy.” Court of law provide monetary remedies for breach while courts of equity provide unique remedies designed to relieve the aggrieved party when monetary awards are inadequate, such as forcing performance by the defaulting party. [This is where we get the words in Article III. Section 2, of the US Constitution: “The judicial power of the United States shall extend to all cases, in Law and Equity.”] Synonymous with the term “contract” are “agreement” and “compact.” Throughout Anglo-American history, people have organized their government through compacts or “social compacts.” The philosopher, John Locke, who our Founders leaned most heavily in founding our country and drafting our foundational documents, explained that individuals, when organized in societies, form their government by way of social compact.
Historical Anglo-American jurisprudence provided a party aggrieved by a breach of contract certain choices by law: First, he could choose to proceed to a court of law and seek damages for the loss of money in reliance upon the contract being fulfilled. In such a court, the aggrieved party would seek from the party in breach such sums as would place him in as good a position as he would have been had the contract been fully performed. Alternatively, a court of equity could enforce the contract for the aggrieved party by ordering “specific performance” by the defaulting party – that is, the court would force the party to fulfil his obligations under the contract. Finally, Anglo-American equity jurisprudence provided for another remedy for breach of contract – “rescission,” or the annulment of the contract. Since the end of the eighteenth century in England, rescission has often been used as a remedy in conjunction with “restitution.” The aggrieved party would ask the court to annul the contract and, at the same time, ask that he be made whole for his own performance, thereby placing him in the same position he occupied before he entered into the contract.
For a States to claim the right of secession from the Union, the Constitution must be construed to be an agreement created by the States as parties.
Unquestionably, the Constitution was created as a social compact. It had all the requisites of a contract. There were parties: thirteen States, to which were added those that similarly ratified the document in the years after 1781. There was mutuality: each State promised to give up some of its sovereignty in exchange for what the Union promised to deliver – for receiving a “common defense” and some regulation of commerce between the States where it was necessary to ensure free trade. The Constitution was created by the States and ratified by the States, each acting in Convention. It could only be amended by and between the States. And if there was any doubt about the fact that the Constitution was an agreement entered into by and between the States, Article VII states: “The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.” If, then, the Constitution is a compact, what is the remedy for a State or a group of States harmed by a breach of the Constitution by the federal government or other States? [Under Agency law, the “agent” (government) would be fired]. The only remedy, short of persuading the party or parties in breach to conform, is the equitable remedy of rescission.
As most people already know, several states posed obstacles to the adoption of the US Constitution and the formation of the new Union. The states of Virginia, New York, North Carolina, and Rhode Island proved to be battleground states. Ratification by the State of Virginia was made possible only so long as the people of Virginia expressly and specifically retained the right of rescission. The Virginia resolution of ratification of June 26, 1788 read, in part: “We, the delegates of the people of Virginia do, in the name and on behalf of 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 vote in favor of adoption was narrow, 89-79. Virginia was only able to obtain this vote by linking ratification to amendments to be added for a Bill of Rights, which they recommended.
In New York, the battle was just as fierce. Like Virginia, the resolution of ratification was made expressly subject to its peoples’ right of rescission. It read, in part: “We, the delegates of the people of the State of New York do declare and make known that the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness.” The vote in favor of adoption was 30-27. Also following Virginia’s lead, the delegates to the NY Ratifying Convention then presented a veritable catalogue of rights that they believed should be added to the Constitution by way of amendment (a Bill of Rights).
North Carolina and Rhode Island were particularly skeptical. They didn’t ratify the Constitution until after George Washington was already sworn in as the first president of the United States in 1789. They waited until the first US Congress presented a Bill of Rights, as the States has demanded. North Carolina finally ratified the Constitution on November 21, 1789 and Rhode Island ratified on May 29, 1790 (after refusing to consider ratification and joining the Union seven times!!). Like Virginia and New York, Rhode Island adopted the Constitution subject to an express right to resume their delegated powers. It’s Resumption Clause read, in pertinent part:
We the delegates of the people of the state of Rhode Island and Province Plantations, duly elected and met in Convention, do declare and make known
I. That there are certain natural rights of which men, when they form a social compact, cannot deprive or divest their posterity – among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety…..
III. That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness.
Because the adoption of the Constitution by Virginia, New York, and Rhode Island was accepted including their Resumption Clauses, those stipulations became part of the agreement or compact, thereby providing the same benefit to all the States of the Union.
The framers and ratifiers of the Constitution unquestionably understood the Constitution to be a “compact.” The voluminous records documenting the debates of the Constitutional Convention in Philadelphia of 1787 and the State Ratifying Conventions are replete with references to the Constitution as a “compact.” The Federalist Papers and the Anti-Federalist Essays use the same language, arguing for and against the ratification of the Constitution, respectively. Thomas Jefferson and James Madison, the authors of our most important foundational documents, referred to the Constitution as such in their Kentucky Resolutions of 1798 and 1799 and Virginia Resolutions of 1798, respectively and the Southern States, in their Ordinances of Secession did likewise. When Massachusetts attempted to secede from the Union in 1814-1815, it also referred to the Constitution as a compact from which it retained the right to rescind. James Madison declared long after the ratification of the Constitution that “Our governmental system is established by a compact, not between the Government of the United States and the State governments, but between the States as sovereign communities, stipulating each with the other a surrender of certain portions of their respective authorities to be exercised by a common government, and a reservation, for their own exercise, of all their other authorities.”
If the Constitution is a compact, and it could be rescinded or annulled upon a breach, what would be sufficient to constitute a breach? Whatever would constitute a breach is left wholly to the States seeking the extraordinary remedy of rescission. Obviously, in the words of James Madison’s 1800 Report on the Virginia Resolutions of 1798, the offensive act would have to be “a deliberate, palpable, and dangerous exercise of power not granted by the compact.”
While the governments of monarchs and dictators that ravaged Europe for centuries were based on the “universal law” that governments are not created by instruments that provide a mechanism for their own dissolution, the American government system flips that system on its head. The Declaration of Independence, embracing Natural Law and rejecting the Divine Right of Kings, proclaims that governments are only temporary in nature and are instituted among the People, by the People, and for the People for the primary purposes of securing their inalienable rights and for effecting their happiness. “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.” The Constitution, drafted to embrace the principles proclaimed in the Declaration, is therefore a revolutionary document. It is a revolutionary instrument created by a revolutionary people at the end of a successful revolution fought to end the rule of a monarch on the American States and the American people and to guarantee fundamental liberties to all citizens. The government created by the Constitution is worth keeping only so long as it serves this end. Sadly, this fundamental understanding of the formation of the Union was completely lost on Lincoln (or he was willfully and ambitiously blind to this understanding). The War of 1861 and the lies perpetrated on the country by the “victors” (because the victors have the luxury of telling the story and vilifying the conquered) have obscured the truth of our Constitution and our history. The transformation of our country from a republic to one oppressed by an over-zealous central government in the consequence of these lies.
The Constitution’s text and history before the Civil War did NOT change as a result of the surrender at Appomattox. Contracts do not textually change by the use of brute force; contracts change ONLY by the agreement of the parties. The Constitution was still a “constitution between the States” after the war as it was before. It remains so now.
If the government created by the Constitution ceases to guarantee liberty, there must be a remedy available to those oppressed by it. It is not the courts; the citizens may not even have standing to challenge the actions of the federal government, and moreover, the courts are creatures of the very government that would be the oppressor. To be sure, courts are not competent to even address constitutional challenges to acts of Congress that allege that those acts undermine the liberties of citizens and invade the powers reserved to the States. Resorting to the ballot may be ineffectual; the votes of a few metropolitan areas may negate the votes of all other regions. More than that, fundamental liberties should never be subject vote. What remains to protect individual liberties are the States as parties to the Constitution. As parties, they must exercise their “duty” to protect their citizens from a federal government that has grown too powerful, too intrusive, too dictatorial. They do that by exercising the right that parties to agreements have exercised for literally hundreds of years: to stand up to actions that invade the liberties of citizens and the reserved powers of the States by, first, nullifying the unconstitutional acts and then, if the federal government persists, seceding. The framers and ratifiers would not have thought any differently. After all, although they were revolutionaries who created a revolutionary form of government, they were also the inheritors of an Anglo-American legal tradition that had been developed over hundreds of years, which defined contracts and remedies available to those injured by the breach thereof.
The conflicts that divide Americans today are certainly as profound as those in other periods of our history, including those that compelled the Colonies to separate from Great Britain, those that troubled Massachusetts in 1815, and those that troubled the Southern States from 1828 to 1860. The numerous laws, voluminous regulations, and many illegitimate rulings by the Supreme Court have abused and usurped our rights and liberties and have, in effect, evidenced the design by the federal government to consolidate us into a one-size-fits all nation untethered to the States which used to be obligated to protect us. The reasons for the Constitution have been frustrated and now forgotten. Clearly, the grounds to rescind the compact are legitimate and numerous.
In the history of the world, principles have always been more important than geographical boundaries. We have to ask ourselves what our alternatives are in order to preserve our traditional American principles. If we continue to believe they are being subverted and eroded, and if we continue to believe that our rights, our freedoms, and our liberty are being threatened and violated, then we have to ask ourselves what our rightful remedies are.
Donald Livingston, ed. “Rethinking the American Union for the 21st Century,” Pelican Publishing Company, 2013.
Kent Masterson Brown, “Secession: A Constitutional Remedy,” in “Rethinking the American Union for the 21st Century,” Pelican Publishing Company, 2013.
Thomas DiLorenzo, “The Founding Fathers of Constitutional Subversion,” in “Rethinking the American Union for the 21st Century,” Pelican Publishing Company, 2013.