ON PART EIGHT OF “A CONCURRING OPINION”
Dr. Edwin Vieira, Jr., Ph.D., J.D.
April 8, 2010
Timothy Baldwin’s “A CONCURRING OPINION FOR SECESSION (Part 8)” continues his argument, with the main point of which I am in full accord, that the Supreme Court of the United States is not the sole and final judge of the constitutionality of a State’s resistance to usurpation and tyranny on the part of rogue public officials in the General Government. Nonetheless, again Mr. Baldwin makes some assertions that warrant separate comments.
1. Mr. Baldwin observes that “[i]t is curious to argue that the States are not sovereign, independent states * * * when the US Constitution guarantees the right of the people to keep and bear arms, the purpose being to secure a FREE STATE”. Well, I certainly have never contended that “the States are not sovereign” to some degree. The question remains, though, “To precisely what degree is that?” It is not impossible for a State to be “a free State” (as the Second Amendment uses that term) yet be part of a federal system in which she has surrendered (or, perhaps, “contributed” is more descriptive of the situation under the Constitution) some of her pre-existing sovereignty and independence. The extent to which such a contribution has taken place, of course, depends on the specific terms of the organic law setting up the federal system—in America’s case, the Constitution.
As to the States’ original sovereignty over their Militia—which, of course, the Constitution plainly recognizes, by describing them as “the Militia of the several States”, not “the Militia of the United States”—some of that authority has been transferred to the General Government. See Article I, § 8, cls. 15 and 16 and Article II, § 2, cl. 1. In these particulars, the States are not “independent” of the General Government with respect to their Militia. Of course, this does not mean that the States cannot, or should not, call upon their Militia to defend them from usurpation and tyranny on the part of rogue officials of the General Government if such action were absolutely necessary. And it does not mean that, if the States did call upon their Militia for that purpose, they could not do so within the bounds of the Constitution, and for the purpose of enforcing it—in particular, “execut[ing] tjhe Laws of the Union” and “suppress[ing] Insurrections”—as opposed to outside of the Constitution in the course of seeking to “secede”. That is, a State’s “right to secede” is not a necessary consequence of the Second Amendment. To the contrary: The Second Amendment guarantees the people the means to preserve their Constitution against all enemies, foreign and domestic.
Similarly, as Mr. Baldwin rightly says, the States need not “submit to unconstitutional laws upheld by the US S CT even though the states, through their agents, swore to upheld the Supreme Law of the Land to the contrary”. But although the States need not so submit, again the question remains, “How should they resist?” Or, in the context of Mr. Baldwin’s main concern, “Under what circumstances and pursuant to what procedures is ‘secession’ a proper option for such resistance?”
2. Mr. Baldwin asks
[w]hat assurance and protections do the[ States] have to ensure that the US S CT will not rule unconstitutional what is actually constitutional? Is it three fourths of the states? What if three fourths of the states do not enforce the constitution either? Are the remaining one fourth of the states to comply with unconstitutional laws perpetually?
Under the principles of the Declaration of Independence, the States need not “comply with unconstitutional laws perpetually”. Nonetheless, the problem is to determine whether the Supreme Court has “rule[d] unconstitutional what is actually constitutional, and whether “three fourths of the states do not [intend to] enforce the constitution either”. How either of these determinations is to be made without actually invoking the constitutional procedures for making them remains a mystery to me. Perhaps, in the event, those procedures will prove unavailing. At least, though, they will have been tried.
3. Mr. Baldwin rightly points out that “the federal supreme court was not given the power to * * * destroy the political sovereignty of the states, by virtue of the fact that no branch of the federal government has the power to destroy what the states ratified”. But, if the Constitution is a “compact” among the States (as Mr. Baldwin contends that it is), how can any State or combination of States unilaterally claim “the power to destroy what [all] the states ratified”, by “seceding” in a manner not plainly sanctioned by the Constitution? The making of a “compact” (such as the Constitution) is, after all, an exercise of political sovereignty. Are we to believe that all of the States exercised their political sovereignty for that purpose, with not only serious domestic but also potentially grave international implications in their action, yet left it to any single State to defeat the entire project at any time by “seceding” whenever she felt like doing so?
4. Mr. Baldwin writes that “[a] court has never been deemed the proper forum to decide matters of political sovereignty: Questions [which are] in their nature political...can never be made in [a] court.’ Marbury v. Madison, 5 U.S. 137, 170 (1803) (emphasis added).” Only closer inspection, though, Mr. Baldwin may recall that in Marbury Chief Justice John Marshall defined “political questions” as questions in which a political department of the government has lawful discretion to act as it may choose. So, simply assuming (as Mr. Baldwin does) that a State has such discretion with respect to “secession” is not to apply Marbury, but to beg the type of question which Marbury actually did address and answer.
5. Mr. Baldwin then asks
how can it be presupposed that the federal court possesses the unbiased qualification to determine the sovereignty of the state, where that court has a vested interested in the opposing party to the ‘case,’ that is, the federal government? That is impossible and flawed.
If “[t]hat is * * * “flawed”, yet it is most assuredly not “impossible”, because the States themselves set up this arrangement, and therefore waived any claims they might have had against the Supreme Court on the grounds of supposed “bias”. Furthermore, one should presume that, if the Justices of the Supreme Court were to honor their “Oath[s] or Affirmation[s]” of office under Article VI, Clause 3, they would not skew their opinions on the basis of “a vested interest in * * * the federal government”, or “a vested interest in” State sovereignty, but instead would decide any case relating to “secession” in keeping with the true meaning of the Constitution. To be sure, the Justices might dishonor their “Oath[s] or Affirmation[s]” and render fraudulent opinions—but, in that event, those opinions would be void and of no legal effect on the States or anyone else.
6. Mr. Baldwin then argues that “[i]t has long been recognized that a courts’ power can no more extend to matters than what the corresponding legislature can reach” and “[t]hus, where Article 1, section 8 (the powers of Congress) do not concern determination of state sovereignty, the parties to the compact, the nature of union and the powers of body-politic, the federal courts can have no jurisdiction over the same under Article 3”. The problem with this reasoning is that Article III (as I have explained in earlier commentaries) directly contradicts it. Besides, Mr. Baldwin seems to be confused as to what constitutes “the corresponding legislation” that grants jurisdiction to the Supreme Court over such matters. It is not some statute of Congress. Neither does “secession” relate to some power of Congress under Article I. Rather, it is the Constitution itself, enacted by the supreme human legislators in America, We the People, that grants jurisdiction to the Court. And “secession” is a matter of the legal relationship of a State to the Union, not of the relative priority of (say) State legislation to Congressional legislation (which Article VI, Clause 2 addresses). Does Mr. Baldwin really mean to contend that, if the Constitution grants such jurisdiction (as plainly it does), nonetheless that grant is null and void because We the People could have no authority to promulgate it? Is the supposed power of a body-politic to “secede” so plenary that the body-politic itself cannot impose restrictions on its own exercise of that power as part of a “compact” with other bodies-politic? And is Mr. Baldwin willing to accept the necessary consequence of an affirmative answer to the last question—namely, that if the right to “secede” can never be limited, then no BINDING “compact” among sovereign States is ever possible, and therefore no actual LAW of nations is ever possible either, inasmuch as the essence of all “law” is an obligation BINDING on the parties subject to it? I doubt that someone as astute as he would adopt such conclusions—which suggests that he may wish to modify his premises instead.
7. Mr. Baldwin complains that “[t]o say that only the federal supreme [court] can decide the power of the states to secede concludes that Congress has the same power to prevent a state to secede”. Now, I do not hold that “only” the Supreme Court “can decide the power of the states to secede”. In extremis, under conditions that satisfy the principles of the Declaration of Independence, the States themselves might have to assert that power in their own self-defense, and could be justified in doing so. But I do believe that, where rogue public officials attempt to involve their State in unconstitutional “secession”, not occurring under such conditions, Congress, acting in the name of all the others States, surely does have the power—and the duty, as well as the right—to prevent those officials from succeeding in their scheme. First, in the case of a single State, assume for purposes of illustration that rogue public officials were to enact an “ordinance of secession”. If this ordinance were unconstitutional on (say) the basis of Article VII (as I have explained in an earlier commentary), then those officials’ actions would amount to a violation of “the Laws of the Union”, an “Insurrection[ ]”, and a “Rebellion”. Congress has the authority to enact legislation to deal with all of those problems. See Article I, § 8, cl. 15 and § 9, cl. 2. If the “ordinance of secession” set off domestic turmoil with the State, such that a legitimate State legislature could not convene, Congress has the authority to deal with that, too. See Article IV, § 4. Second, in the case of two or more States which purported to “secede” by entering into some new “confederacy”, the formation of such a “confederacy” by itself would violate Article I, § 10, Clause 1 (“[n]o State shall enter into any Treaty, Alliance, or Confederation”), or Article I, § 10, Clause 3 (“[n]o State shall, without the Consent of Congress, * * * enter into any Agreement or Compact with another State”), or both—and in any event would amount to a violation of “the Laws of the Union”, an “Insurrection[ ]”, and a “Rebellion”, as to each of which Congress enjoys the authority to enact remedial legislation. See Article I, § 8, cl. 15 and § 9, cl. 2.
8. Finally, Mr. Baldwin argues that “[a]s understood by our founders, this grant of power [to the federal judiciary to decide cases involving constitutional issues] in no way granted them jurisdiction over the matter of state sovereignty, which is expressly reserved to the states themselves in the tenth amendment”. The problem with this contention is that no “express” reservation concerning “jurisdiction over the matter of state sovereignty” appears in the Tenth Amendment. The Tenth Amendment tells us that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”—but, although this is an important statement of the principles of federalism and subsidiarity, it does not tell us precisely what those “powers” are. Mr. Baldwin assumes that one of those powers is the power of unilateral, discretionary State “secession”. But, to prove this, he would have to prove that no power “delegated to the United States” or “prohibited * * * to the States” negates the existence of such a power of “secession”—and, as well, that the States’ mere ratification of the Constitution under Article VII as a “compact” among themselves does not negate “secession”, except through the exercise of the power of amendment for which the “compact”itself provides in Article V.
Appeals to what was supposedly “understood by our founders” as to these matters in various of their writings are not particularly useful, because what was “understood by our founders”as to the actual organic law of our country they took care to write down in the Constitution—which, along with the Declaration of Independence, is the highest competent evidence on the subject. The Constitution itself—not what Madison, Hamilton, or anyone else among the Founders may have said about the Constitution—determines what the Constitution means. Those men, as distinguished as they were, could have been wrong on any particular point; or their writings could be sufficient loose as to be subject to gross misinterpretation; or, in the case of someone such as Hamilton, their words could sometimes have been penned more for political effect than for legal accuracy.
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The Constitution, in contrast, cannot be “wrong” in the sense that someone’s personal opinion about it can be wrong. It is what it is. It says what it says. And it means what it says. Our problem is to read it without putting on ideological spectacles that twist its words to some predetermined meaning alien to the text. For part nine click below.