Timothy N. Baldwin, JD.
February 19, 2010
(Continued) Anti-Secessionist Argument: Only the U.S. Supreme Court has the power to determine the lawfulness of a State’s Power and Authority to Secede
Self-Preservation Inherent in Sovereign States and in Nature
In cases of self-preservation/secession, Hamilton cannot get away from the controlling principle in Federalist Paper 26, in which he describes a situation where the three federal branches of government conspire to encroach upon the rights of the people and the sovereignty of the states. In this event, Hamilton says,
“If such presumptions can fairly be made, there ought at once to be an end of all delegated authority. The people should resolve to recall all the powers they have heretofore parted with out of their own hands, and to divide themselves into as many States as there are counties, in order that they may be able to manage their own concerns in person.” (emphasis added).
Hamilton speaks of true self-government here. But how can the people have the right to dissolve their association with the federal government if the US S CT or three fourths of the states say they do not have the power to do so? Hamilton’s anti-secession-secession descriptions must be reconciled somehow, and most certainly cannot be held against the states (speaking of “detrimental reliance”).
Hamilton recognizes that there may be a time when the federal government has gotten so out of hand that the people of the states should consider an “end of all delegated authority” and should dissolve political associations so that they may “manage their own concerns in person,” ergo, secession, self-preservation, self-defense and self-government. To this end, Hamilton observes that “State legislatures will always be not only the vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government.” FP 26.
But under what authority would State legislatures have the power to guard against federal encroachments if they are bound to the US S CT, one part of the federal government? By what means can the states guard against the federal government where the only method of guarding is through amending the constitution, despite the fact that the constitution’s meaning and intent is not defective. Is the constitution to be amended upon each and every federal encroachment?
Why would Hamilton suggest that the State legislatures not only “be the VOICE, but if necessary, the ARM of their discontent”? FP 26. What voice? What arm? What second amendment? What power would the voice (persuasion) and arm (force) have if they possessed no authority to effectuate that guardianship? Self-defense, self-preservation and self-government mean nothing if they are conditioned upon what the federal government says that means.
State’s Power to Resist Unconstitutional Federal Actions
Vieira intimated in his article that unconstitutional actions may be void, but yet cannot be resisted by individual states until declared void by the US S CT (or perhaps three fourths of the states). This in essence gives validity to any federal unconstitutional act, despite the fact that the act remains unconstitutional and contrary to the Supreme Law of the Land. But somehow the states are supposed to suffer until the constitution is changed or the federal supreme court comes to the rescue. This practical application does not even conform to the understood means of redress regarding a king’s violation of a constitution, nor does it conform to what Alexander Hamilton describes in Federalist Paper 16.
In Law of Nations, Vattel describes the manner in which a king must follow the constitution and the means of redress and rights of defense the people have against those unconstitutional acts:
“But when the sovereign power is limited and regulated by the fundamental laws of the state, those laws show the prince the extent and bounds of his power, and the manner in which he is to exert it. The prince is therefore strictly obliged not only to respect, but also to support them. The constitution and the fundamental laws are the plan on which the nation has resolved to labour for the attainment of happiness; the execution is intrusted to the prince.
“Let him religiously follow this plan; let him consider the fundamental laws as inviolable and sacred rules; and remember that the moment he deviates from them, his commands become unjust, and are but a criminal abuse of the power with which he is intrusted. He is, by virtue of that power, the guardian and defender of the laws: and while it is his duty to restrain each daring violator of them, ought he himself to trample them under foot?” Vattel, 101 (emphasis added).
These emphasized words should stand out to anyone who has studied the principles of limited government, for they are the same words used by our founders throughout our freedom documents, including the constitution itself. So, what is the remedy when the prince becomes unjust and a criminal against those fundamental laws?
“If the authority of the prince is limited and regulated by the fundamental laws, the prince, on exceeding the bounds prescribed him, commands without any right and even without a just title: the nation is not obliged to obey him, but may resist his unjust attempts. As soon as a prince attacks the constitution of the state, he breaks the contract which bound the people to him; the people become free by the act of the sovereign, and can no longer view him but as a usurper who would load them with oppression.” Vattel, 104.
Similarly, Alexander Hamilton shares the difference between the Articles of Confederation (which allowed passive nullification) and the US Constitution (which allows active nullification) relative to their ability to resist federal actions:
“The plausibility of this objection will vanish the moment we advert to the essential difference between a mere NON-COMPLIANCE [under the Articles of Confederation] and a DIRECT and ACTIVE RESISTANCE [under the US Constitution]. If the interposition of the State legislatures be necessary to give effect to a measure of the Union, [under the Articles of Confederation] they have only NOT TO ACT, or to ACT EVASIVELY, and the measure is defeated.
“[But under the U.S. Constitution, the State legislatures] would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights…Attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors, UNLESS IN CASES OF A TYRANNICAL EXERCISE OF THE FEDERAL AUTHORITY.” Alexander Hamilton, FP 16 (emphasis added).
Hamilton gives more credence to the power of the states to actively resist federal tyranny in Federalist Paper 28. He says,
“If the [federal] representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government…
“[I]n a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government…
“It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.” (emphasis added)
How can a “confederacy of people” be the “masters of their own fate” where their fate is determined by nine judges accountable to the tyrants causing the problems? How can the states provide a “complete security against invasions of the public liberty by the national authority,” if their power to do so is curtailed by the US S CT? This is no power at all, and where the US S CT conspires (in principle and effect) with Congress and the President to deny the people of the states their rights and sovereignty, the states are not bound to suffer at the hands of a union that is enslaving them.
Resistance against federal actions was never condemned by our founders given the protections in our federal constitutional republic system--just the opposite. Resistance: this is the American principle which gave courage and victory to the colonies, and it will always prevail against any government that attempts to usurp its defined limitations. And of course, resistance includes secession.
Conclusion: Matters of Sovereignty Belong to the People
Matters of secession and nullification are political decisions to be made only by the political body-politic of a sovereign. “Cases in law and equity” by their very nature do NOT include matters of political sovereignty of states. Extensions of court jurisdiction do not contain the power to determine what state sovereignty means or is and to ultimately destroy the very nature and character of the federal compact. These lines of sovereignty are not ultimately maintained by a court which has no power of enforcement. They are maintained by the bodies-politic which have the power to make and unmake constitutions and have the power to govern themselves according to their political sovereign determination.
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The next articles will address, Anti-Secessionist Argument: The US Constitution Does Not Grant the State’s The Right to Secede Individually, and even if it were admitted that secession is a right, it may only be accomplished with the permission of at least three fourths of the states.
Go to www.libertydefenseleague.com for articles, speeches and interviews of Timothy Baldwin.
© 2010 Timothy N. Baldwin, JD - All Rights Reserved
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