Timothy N. Baldwin, JD.
February 24, 2010
(Continued) 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.
Retained Powers of the States
Since it was understood that the states possessed the sovereignty that states possess in the Law of Nations, Alexander Hamilton recognizes that “the States will retain all PRE-EXISTING authorities which may not be exclusively delegated to the federal head.” FP 82. States can retain sovereignty only if they possess it to begin with. As has been seen in the previous article, this included the right to secede. Moreover, Hamilton observed that there are only three ways that the states’ powers would be diminished:
“(1) where an exclusive authority is, in express terms, granted to the Union; or (2) where a particular authority is granted to the Union, and the exercise of a like authority is prohibited to the States; or (3) where an authority is granted to the Union, with which a similar authority in the States would be utterly incompatible.” FP 82 (parenthesis and emphasis added).
Apparent in Hamilton’s description of the states’ retained powers is that all of the manners through which the states waived their rights were by express delegation or expressed prohibition within the constitution. (Notice: “granted to the Union” and “prohibited to the States.”) Not one provision of the constitution delegates this power of secession to the federal government nor prohibits this right from the states. This retention of state sovereignty is clear from the fact that the powers granted to the federal government and the powers retained by the states in the Articles of Confederation and the US Constitution were substantively identical; yet, we see that the states seceded from the Articles and acceded to the US Constitution.
Even more telling about this qualification of delegating state sovereignty is that Hamilton clarifies that these restrictions against the federal government encroaching upon state sovereignty applies to the federal judiciary as much as it does to Congress:
“Though these principles may not apply with the same force to the judiciary as to the legislative power, yet I am inclined to think that they are, in the main, just with respect to the former, as well as the latter. And under this impression, I shall lay it down as a rule, that the State courts will RETAIN the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes…[T]his doctrine of concurrent jurisdiction is only clearly applicable to those descriptions of causes of which the State courts have previous cognizance.” FP 82.
This description of the jurisdictions of state and federal courts clearly indicate that sovereignty is outside the role of the court--any court. Cases belong to courts. Sovereignty belongs to the people.
Hamilton recognizes that sovereignty is retained “unless it appears to be taken away in one of the enumerated modes.” To be certain, regarding the right or lack thereof to leave the union, the constitution is silent. So, which of the modes of enumeration, delegation or prohibition of sovereignty did the states use to waive their right to secede? None.
Consider this: the constitution provides for a way to amend, ratify, and add new states, but it is utterly silent on secession. Do you find it peculiar that they left out this provision if the states in fact intended to bind themselves “perpetually” and all others to remain in the union against their will, especially when the right of secession was not only accepted and recognized, but also just used to secede from the Articles of Confederation and also incorporated into the ratification documents of some states and the constitutions of other states?
The US Constitution did not even declare that it was “perpetual” as the Articles of Confederation did. Yet, the states seceded from the union under the Articles of Confederation by ratifying the US Constitution, despite the Articles’ provision that it could not be amended except by unanimous consent of all the states. Did the ratifiers and drafters of the US Constitution intend to strip the states of the right to secede but leave out the expression of it completely? That seems very implausible (and realistically, impossible), given all of the other evidence of the ratifiers’ and drafters’ intent to form a federal republic of sovereign states by their assent.
Just the opposite was accomplished after the constitution was presented to the states for secession from the Articles of Confederation and accession of the new constitution. Instead of waiving of their right to secede, they confirmed their retention of all powers not delegated or waived (just as they did under the Articles of Confederation), which they considered to be as important, if not more important, than all of the other bill of rights ratified.
If the states intended to waive this right and to grant it to the union, they would have most certainly provided for the same in the constitution, for they included every other means of entering, amending and adding to the union. The exclusion of this waiver is telling, and points us to the tenth amendment, which states, all powers not delegated are reserved.
One must admit that the closer in time one gets to matters of intent, the more closely we will find the facts pertaining to that intention. The constitution is not defined in a vacuum, but has certain historical and principled context to understand its true meaning of the nature and application. “Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution,” as James Madison tells us.
Consider that the US Constitution and the Articles of Confederation are brothers of the same parent. Though they are not identical twins, their character and nature confirm that their parents were the same: Mr. Sovereign States and Ms. Federal Compact. Both their purposes for the federal government were the same. Both their limitations were the same. The retention of state sovereignty was the same. Go down the list, and you find nothing but similarity. This is why Madison confirmed that the Constitution was an extension of the same principles of the Articles. This point has already been discussed in previous articles, so I will not belabor the point.
Moving on from that time, consider the Constitution of the Confederate States of America after those states seceded from the Constitution of the United States of America. Their constitution was virtually identical to the US Constitution as well. In that document, the states retained the powers not granted to the federal government, just as the tenth amendment does in the US Constitution. The amendment process was virtually identical as Article V of the US Constitution. The Supremacy clause was the same. The oath of office was the same. The preamble to the constitution is likewise similar, yet with a “permanent” status, just as the Articles of Confederation: “We, the people of the Confederate States…[do] form a permanent federal government.” Every provision used by unionists opposing the right for a state to secede was identical to the US Constitution. If one were to construe the Constitution of the Confederate States, they would no doubt come to the same conclusion: the states waived their right to secede. Yet, the historical context of that constitution proves otherwise.
So, is it to be argued that those Confederate States intended to form an indivisible union, waiving their right to secede, when they had just demonstrated that they believed the opposite? Likewise, how can it be argued that the same provisions in the US Constitution are to be used against the right of a state to secede, when the practice and principles of government believed by those bodies-politic confirm the opposite intent and when they clearly demonstrated the right to secede from the Articles of Confederation? Clearly those Confederate States of America did not believe their forefathers had waived that right when they ratified the US Constitution, yet the Confederate States did not expressly state in their constitution, “the states reserve the right to secede.” Likewise, those United States of America did not waive this right. All of the states in the Articles of Confederation, the US Constitution and the Confederate States retained this right because they did not grant or waive it.
Were those men in 1781, 1787 or 1861 so ignorant? Absolutely not. They were some of the most highly-educated and intelligent men alive. (It would be depressing to see how modern Americans compare to their intellect and education.) Yet, here we are, some 250 years after the ratification of the Articles of Confederation and US Constitution, and we are somehow to interject our own personal definition of what the states intended to form.
Article V Only Addresses the Terms of the Compact, and Not the Parties of the Compact
Do you think the constitution is defective or do you think that the federal government has usurped its authority? Do you think that the federal government ignores its limits or do you think that the constitution does not adequately limit the federal government? See, the problem here is that most people who believe there is a serious problem in the federal government do not believe the constitution is defective. In fact, they will hold anyone as a traitor who suggests that the states secede from it, because many hold the union itself to be above even the cause of freedom. So, by default, they believe the federal government is defective. Well, let us see what Hamilton said about this situation:
“Tyranny has perhaps oftener grown out of the assumptions of power, called for, on pressing exigencies, by a defective constitution, than out of the full exercise of the largest constitutional authorities.” FP 20 (emphasis added).
Hamilton says that tyranny grows out of assumptions of power arising out of a defective constitution, one where its principles are defective and in error; not from too large of grants of power within the bounds of the constitution. So, the conclusion here is that if you believe the constitution is not defective, then the solution is not an amendment. However, if it is defective, in what way is it defective? Are we learning of these deficiencies 250 years later? Are the deficiencies based upon the “out-of-control” behavior of the federal government, like a spoiled child that cannot be controlled by his parents, so the parents think the child needs a “new environment” to learn better behavior, instead of simply enforcing the rules already established?
Indeed, what principles are defective? Are we then to blame the federal government for its abuses when the fault lies not with them, but with the constitution? And assuming you amended the constitution to limit the federal government more. Then what? The “final arbiter” decides what that amendment means and how far its limits go? Then we are right back where we started with more federal encroachments. This is truth: mere words on paper do not limit governments, just as James Madison said:
“[P]ower is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it…What this security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power?” FP 48.
Openly admitted, Madison believes that constitutional barriers mean nothing simply on paper, which is why a constitution can lose all practical effect and purpose; ergo, dead. There must exist “force meeting force” to be effective. So, you can amend the constitution every year if you would like. That is not going to change the problem of corrupted power and incorrect principles of government, nor does it provide disincentive for the federal government to stay within its bounds.
Only actual resistance and fear of retribution can deter tyrants. Does this not comport with human nature? Do you think the federal government fears the states? Do you think the US S CT fears the other federal branches or the states? Do you think Congress fears their constituents? All indications suggest that the federal government fears no other and acts accordingly.
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Thankfully, our forefathers were far-sighted enough to know the best way to protect freedom is to keep power divided, limited, separated and checked. For this reason, all powers not delegated are retained, and this conclusively means, secession. For part twelve click below.
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