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A CONCURRING OPINION FOR SECESSION
PART 6

 

 

By Timothy N. Baldwin, JD.
February 19, 2010
NewsWithViews.com

Anti-Secessionist Argument: Only the U.S. Supreme Court has the power to determine the lawfulness of a State’s Power and Authority to Resist the Federal Government and Secede.

The anti-secessionist position stated above is loaded with such serious and far-reaching implications and effects that it would literally turn what was intended to be a federal form of government into the national form of government our founders rejected at the constitutional convention. From a historical perspective of course, this premise is based upon the presumptions (among others) that (1) the US Constitution was not formed by sovereign states in a federal compact, the response to which has already been discussed; (2) state sovereignty is subject to one branch of the federal government; (3) the federal government would not attempt to encroach state sovereignty; (4) the states intended to subject their sovereignty to a “common judge” out of their reach in the federal supreme court; and (5) the federal court’s power extends to matters beyond what Congress can regulate and the President may execute.

Importance of Maintaining State Sovereignty, Even Over Individual Justice

Let us clarify the importance of the matter. To say that a state must file suit in the US S CT to determine whether or not it has the right to secede is comical (from an outcome perspective) and meritless (from a historical, constitutional and principle perspective). It puts the sovereignty of states on the level of an individual, when the two are not even comparable. It puts the power of the court to hear and rule on individual cases above what the sovereignty of an entire body-politic can do through its independent political system. As Vattel notes,

“[T]he law of nations is, in point of importance, as much superior to the civil law, as the proceedings of nations and sovereigns are more momentous in their consequences than those of private persons.” Vattel, 18.

Of all people, certainly our founding fathers and ratifiers knew of the importance of state sovereignty, limited government, check and balance, and federalism for the preservation of the members of the union: the states. For “since then a [state] is obliged to preserve itself, it has a right to every thing necessary for its preservation…[O]therwise [the Law of Nature] would oblige us to do impossibilities, or rather would contradict itself in prescribing us a duty, and at the same time debarring us of the only means of fulfilling it.” Vattel, 88.

Underlying Presumption for Ratification of the Constitution: The General Government Would Not Violate Lines of Sovereignty

One of the underlying presumptions and premises regarding Hamilton’s advocating for the ratification of the constitution is that it is unimaginable that the general government would ever encroach upon state sovereignty, since good faith is required in all compacts. (Boy, was he mistaken…or manipulative!) He says,

“I confess I am at a loss to discover what temptation the persons intrusted with the administration of the general government could ever feel to divest the States of the authorities of that description.

The regulation of the mere domestic police of a State appears to me to hold out slender allurements to ambition…It is therefore improbable that there should exist a disposition in the federal councils to usurp the powers.” FP 17.

Hamilton attempts to defuse the concerns regarding the abuse of power in the federal government over the states by observing two things: (1) the federal government would never encroach on their powers; and (2) the state police would be a deterrent to the federal government. Though (2) is not the point to be made at this junction, let us observe now: how can the state police stop the federal government from doing anything if the state does not have the sovereignty to do so and is subject to federal laws without regard to its own sovereignty? How can they stop the federal government when the US S CT is their sole source of power in that regard and is their source of a “go-ahead”? Sovereignty being controlled by another is no sovereignty at all. But the point to be made here is Hamilton’s presumption that for the union to exist, the federal government must intentionally and purposely not encroach upon state sovereignty.

From this presumption, of course, the issue is raised, well, what if they do intentionally encroach on their sovereignty? The principles that follow are relevant to that question.

Powers Not Delegated Are Reserved: Parallel Lines of Sovereignty

Here is a fundamental constitutional principle expressed in the tenth amendment: whatever powers the states did not delegate, they reserved. Very clearly from the text, the states never gave up the power to secede in the constitution. Instead, the constitution maintained an inviolable line of sovereignty of the states, whereby any encroachment upon that line is unconstitutional and void. This line is maintained despite federal laws passed (Congress) and executed (President) or federal judgments rendered (Court). No one federal branch has the power to do what the entire federal government has no power to do. This line is immutable and unchangeable, federal laws and judgments to the contrary notwithstanding.


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Even the nationalists admitted that this line could not be breached without an encroachment upon the right of the states. Thus, the principles and applications of reserved powers apply. Consider these nationalists’ descriptions of the reserved powers in the states and the inviolable line of sovereignty each maintained.

“[The states possess] certain exclusive and very important portions of sovereign power.” Alexander Hamilton, FP 9.

“The State governments, by their original constitutions, are invested with complete sovereignty.” Alexander Hamilton, FP 31.

“[U]nder the plan of the convention, [the states] retain that authority in the most absolute and unqualified sense; and that an attempt on the part of the national government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of its Constitution. An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States.” Alexander Hamilton, FP 32.

“[The Necessary and Proper clause], though it may be chargeable with tautology or redundancy, is at least perfectly harmless.” Alexander Hamilton, FP 33.

“[Justifications for the] invasions [by the federal government] of that concurrent jurisdiction [in the states]…will be due to those reasoners who, in the imprudent zeal of their animosity to the plan of the convention, have labored to envelope it in a cloud to obscure the plainest and simplest truths… But it is said that the laws of the Union are to be the SUPREME LAW of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing… that it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION… The inference from the whole is, that the individual States would, under the proposed Constitution, retain an independent and uncontrollable authority.” Alexander Hamilton, FP 33.

“To argue upon abstract principles that this co-ordinate authority [of the states] cannot exist, is to set up supposition and theory against fact and reality…The convention thought the concurrent jurisdiction preferable to that subordination.” Alexander Hamilton, FP 34 (emphasis added).

“Not less arduous must have been the task of marking the proper line of partition between the authority of the general and that of the State governments.” James Madison, FP 37 (emphasis added).

“[T]he local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere.” James Madison, FP 39.

“The different governments will control each other, at the same time that each will be controlled by itself.” James Madison, FP 51 (emphasis added).

“[T]he federal legislature will not only be restrained by its dependence on its people, as other legislative bodies are, but that it will be, moreover, watched and controlled by the several [state] collateral legislatures.” James Madison, FP 52 (emphasis added).

The principles cited above (by nationalists no less) establish that the union was not one of supreme sovereignty in the federal government, much less one branch of the federal government, whereby the US S CT has the final power to determine the extent, nature and scope of the sovereignty retained by the States and thus change the nature of the compact itself. Rather, the Confederate Republic principles prevailed, just as was shown in my previous article on the nature and character of the union formed.

It is impossible for human language to exactly draw that boundary line with mathematical precision. That is all the more reason why the constitution did not put the ultimate question of “where is the line” in one branch of the federal government, unelected by the people, appointed and impeached by the other branches of the federal government.

Admittedly, conflicts would arise between state and federal governments. These are the inconveniences of preserving freedom. In the end, the constitution acknowledges that the states would retain all of the sovereignty that they did not delegate to the federal government. This, as Hamilton suggested in Federalist Paper 33, infers “from the whole” that where a state possess sovereignty on a jurisdiction retained, that sovereignty is “independent and uncontrollable authority,” which would be impossible if the US S CT ruled otherwise. To be independent and uncontrollable by another necessarily means that the states retain all powers that nations possess to defend their own existence (and of course, freedom).

This definite line and boundary of state sovereignty admittedly could never be different than what it was when each state ratified the constitution. Political conditions today prove that state sovereignty has all but eliminated by the encroachments of the federal government, despite that line being unchangeable. The constitutional construction theory used by unionists accomplishes the complete opposite of what was intended, so how can this theory be correct? In reality, even if the US S CT were to attempt to fix the power of state sovereignty, their ruling in no way impacts their sovereignty, because the nature of sovereignty implies and expresses the power to defend, perfect and preserve. It is never diminished nor eliminated by any court ruling on a specific civil case at law or equity.

Certainly, if an attempt on the part of the federal government to abridge the states in their right to, say, tax would be a violent assumption of power (as Hamilton said it was), an attempt to abridge their sovereignty in the exercise of any other reserved right must also be a violent assumption of power, for the power to tax was reserved by the tenth amendment, as is the power to secede: “As neither [the state nor the federal government] can CONTROL the other, each will have an obvious and sensible interest in this reciprocal forbearance.”

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What “sensible forbearance” would the federal government need to exercise where they knew the states’ power was subject to interpretation by their own court? After all, did not James Madison state the following political maxim: “It is equally evident, that none of [the political branches of government] ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers.” FP 48. To accomplish this end of protection against unlawful assumptions of power, the states never submitted their right of resistance and secession. For part seven click below.

Click here for part -----> 1, 2, 3, 4, 5, 6, 7, 8, 9,

Go to www.libertydefenseleague.com for articles, speeches and interviews of Timothy Baldwin.

Related Article:

1- A Dissenting Opinion on "Secession"

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Timothy Baldwin is an attorney from Pensacola, FL, who received his bachelor of arts degree at the University of West Florida and who graduated from Cumberland School of Law at Samford University in Birmingham, AL. After having received his Juris Doctorate degree from Cumberland School of Law, Baldwin became a Felony Prosecutor in the 1st District of Florida. In 2006, he started his own law practice, where he created specialized legal services entirely for property management companies.

Like his father, Chuck Baldwin, Timothy Baldwin is an astute writer of cutting-edge political articles, which he posts on his website, www.libertydefenseleague.com. Baldwin is also the author of the soon-to-be-released book entitled, Freedom For A Change, in which Baldwin expounds the fundamental principles of freedom believed by America’s forefathers and gives inspiring and intelligent application of those principles to our current political and cultural standing.

Baldwin is involved in important state sovereignty movement issues, including being co-counsel in the federal litigation in Montana involving the Firearms Freedom Act, the likes of which is undoubtedly a pivotal and essential ingredient to restoring freedom and federalism in the states of America. Baldwin is also a member of freedom organizations, such as The Oath-Keepers, and believes that the times require all freedom-loving Americans to educate, invigorate and activate the principles of freedom within the States of America for ourselves and our posterity.

Web site: LibertyDefenseLeague

E-Mail: tim@libertydefenseleague.com


 

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It is impossible for human language to exactly draw that boundary line with mathematical precision. That is all the more reason why the constitution did not put the ultimate question of “where is the line” in one branch of the federal government, unelected by the people, appointed and impeached by the other branches of the federal government.

 

 

 

 

 

 

 

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