I’m working on a very long scholarly explanation of why libertarians ought to cheer the Union victory in the Civil War, so I don’t want to get dragged into the subject here—certainly not with someone as ill-informed on this subject (and many others) as Stephan Kinsella. On the other hand, I’m ornery and stubborn. So… Kinsella asks,
if you had asked Jefferson, or Washington, while, say, they were President [sic], if they believed the Constitution authorized them to conscript soldiers and attack certain Southern States, to keep them from leaving the Union, and to kill hundreds of thousands of American citizens [sic—if secession is legitimate, then they were no longer American citizens, right?]—what would they say? It is obvious Jefferson and Washington would have vehemently denied such a right….
In fact, this is quite the opposite of obvious. Jefferson actually argued that the Continental Congress had the authority to use force to compel the submission of states even under the Articles of Confederation! In 1786, Thomas Jefferson wrote that
When any one State in the American Union refuses obedience to the Confederation by which they have bound themselves, the rest have a natural right to compel them to obedience. Congress would probably exercise long patience before they would recur to force; but if the case ultimately required it, they would use that recurrence.
Answers to Questions Propounded by Monsieur de Meusnier, Jan. 24th, 1786, in 17 Writings of Thomas Jefferson 121-122 (A. Bergh ed., 1905). A year later, he wrote that a new Constitution was not necessary because the Congress could already coerce states:
It has been so often said, as to be generally believed, that Congress have no power by the Confederation to enforce anything; for example, contributions of money. It was not necessary to give them that power expressly; they have it by the law of nature. When two parties make a compact, there results to each a power of compelling the other to execute it. Compulsion was never so easy as in our case, where a single frigate would soon levy on the commerce of any State the deficiency of its contributions; nor more safe than in the hands of Congress, which has always shown that it would wait, as it ought to do, to the last extremities, before it would execute any of its powers which are disagreeable.
Letter to Edward Carrington, Aug. 4, 1787, in 6 id. at 217-218.
I am less familiar with Washington’s writings than with Jefferson’s, so examples come less readily to mind; yet Washington led federal troops against insurgent tax protestors on the field during the Whiskey Rebellion. One of his primary reasons for backing the call for a federal convention was the Shays Rebellion. “I have my doubts,” he wrote,
whether any system without the means of coercion in the Sovereign, will enforce Obedience to the Ordinances of a Genl. Government; without which, everything else fails. Laws or Ordinances unobserved, or partially attended to, had better never have been made, because the first is a mere nihil, and the 2d. is productive of much jealousy and discontent. But the kind of coercion, you may ask? This indeed will require thought; though the noncompliance of the States with the late requisition, is an evidence of the necessity.
Letter to James Madison, Mar. 31, 1787 in George Washington: A Collection 362 (W.B. Allen ed. 1988). As early as 1783, Washington argued that the authorities of states must yield to the authority of the union just like a county must yield to the state. See Letter to William Gordon, July 8, 1783, in id. at 258.
When Kinsella says “had anyone proposed that such a power be put in the Constitution, it obviously would never have been ratified,” he engages in the most absurd argument—he asserts that a thing did not occur (which plainly did occur) simply because he finds it inconvenient today to believe that his ancestors could have disagreed with him—which they manifestly did. The Constitution creates a government of “the People of the United States,” not a contract between the states. I have explained at length what this means, and will do so at greater length in the future. But Kinsella ignores these things, because he finds it easier to ask rhetorical questions—the answers to which in reality obliterate what pretense to an argument he may have had.
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