Wednesday, March 2, 2011

A Curious Compact

I recently finished reading a rather interesting book by Thomas E Woods, Jr entitled, "Nullification - How To Resist Federal Tyranny In The 21st Century". I recommend it to your reading list as a interesting take on the contractual relationship between States and federal government, the history of this country in its early days as a nation, and of the thoughts and interpretations of those who wrote and encouraged ratification of the Constitution on the potential for over-reaching by the federal government. 

Whether you agree or disagree with the author's point of view, one thing becomes difficult not to accept in the reading; that there is a consistent body of work supporting the idea that those early statesmen felt that the Constitution was a compact between Independent and Sovereign States, entered into for the purpose of creating an entity that could do for them as a group what each could not do for itself (like provide for the common defense). As a compact, it was required that each of the governments of those thirteen States consent to the document in order to form that original union (which they eventually did)

Now some might claim the argument that States are thereby subservient to the Constitution and the federal government by virtue of this ratification process and that the concept of nullification Mr Woods talks about has no place. Strangely in fact, this has been done throughout this nation's short history. When some States passed resolutions decrying federal abuse that they felt was a particularly onerous, others condemned those efforts. 

An example occurred during the Virginia and Kentucky Resolutions of 1798 and 1799 against the Alien and Sedition Act of 1798 passed by Congress. They were followed not many years afterward by similar cries from New England States when Congress passed a national embargo on ships going to foreign ports in 1807. All of these States, with the exception of Kentucky, had ratified the original federal compact; and could therefore been said to have potentially violated it by their legislative action. 

Interestingly however, the New England States that said that Virginia and Kentucky exceeded their authority as State governments with their resolutions at the end of one century; used not only identical reasoning, but the very documents that they had previously decried in their own arguments later on.  Apparently even then, the interests of States were both short-sighted and separate, and one region of the country was prone to demonize another for taking a stand that it did not agree with (or at least, not at the time).

Just to step back and set things in order (historically speaking), Delaware was first State to ratify the Constitution on December 7th 1787, but was followed quickly enough by Pennsylvania and New Jersey in the same month. Georgia and Connecticut followed in January of the following year, and Massachusetts in February. Maryland, South Carolina, New Hampshire, Virginia, and New York all ratified this document in 1788 as well; but North Carolina lagged a year behind, and Rhode Island was the last of the original to sign on, not doing so until 1790.

Then it appears, things may have gotten a bit stickier ... Take Ohio for example, my state of residence for many years. Ohio was admitted to the Union on February 19, 1803, when President Thomas Jefferson signed an act of Congress approving its borders and Constitution. It seems that the practice of Congress declaring a state didn't in fact come for another nine years, and was initiated with Louisiana's entry to the Union. 

Interestingly enough however, the oversight of not being admitted as a State by Congress led to a rather belated petition by the legislature in Ohio in 1953 for such Congressional legislation that retroactively saw Ohio admitted on its original 1803 date. (Which may prove to be a bit of a problem of itself, since according to the Constitution, Congress is not allowed to make a retroactive law, more commonly defined as 'ex post facto'.) This may not have been the only oversight however. Curiosity and a subsequent search of the Ohio statehood process uncovered what might seem to be a teeny, tiny little discrepancy. I can find no evidence that the Ohio legislature ratified the aforementioned federal compact. Additionally, apparently nowhere does the State of Ohio in its constitution ratify the federal version agreed to by those first thirteen States, nor acknowledge this document in any fashion. 

Now it's possible that I simply missed it, or that something as important as the procedure binding each future state to the Union is covered somewhere else in federal law; but if it is, I could find nothing in writing that says so. Perhaps however, this was merely an oversight on the part of those attempting to craft a document to guide the governance of almost 45,000 square miles of the former Northwest Territory; but if it is, such an omission does seem rather glaring.

One cannot help but wonder in light of the opinions expressed in Mr Wood's book, what obligation a state that did not go through such a ratification process, nor in any way certify the federal compact in its State Constitution or otherwise, has to complying with it. One cannot further help but wonder at the implications should such a State decide that a law or laws passed by the national legislature were a violation of such a compact, and chose to ignore them.

I claim no special expertise or scholarly qualification in the field of history, though I have been a student of it for many years. Neither do I claim expertise in the field of Constitutional law beyond where years of reading has taken me. One cannot help but speculate however, at the implications of such revelations these days in light of the apparently long-held principle of 'nullification', the recent return to popularity of the Tenth Amendment, and the defiant stands of States around the country to years of federal authority expansion and to recently passed federal legislation of dubious Constitutional compliance. 

Of the thirty-seven States that have entered the Union since the original ratification process (my math processes are slightly better than the sitting President's during his campaign), how many have likewise had no ratification process and made no mention of agreeing to the national compact in their defining government blueprint? How could such a failure be viewed by State governments wishing to take a principled stand when they felt that the federal government had exceeded its authority under this agreement? What view would or could the Courts take on the concept of "implied consent" of States that had entered the Union without agreeing to the document (either by state legislative ratification or in their constitutions) that defined the relationship of those States to each other and to the federal government? 

If in fact the States were sovereign, what notice would they take of the judicial branch of the federal government ruling for or against them. It is a curious compact indeed that appears to bind these united STATES together ...

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