by Timothy Baldwin
A Concurring Opinion For Secession, Part 6
Anti-Secessionist Argument #3: 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.
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.
“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.
“[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.
“[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.
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.”
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.
A Concurring Opinion For Secession, Part 7
(Continued) Anti-Secessionist Argument #3: Only the U.S. Supreme Court has the power to determine the lawfulness of a State’s Power and Authority to Secede
No Common Judge Regarding Sovereignty
Sovereignty is not a matter for a court. Moreover, the words “cases” and “controversies” especially did not mean the matter of state sovereignty. “Cases in law and equity arising under the Constitution” and “controversies” by definition do not mean the political powers possessed by an independent body-politic regarding matters that only sovereigns can determine. That the federal judiciary does not have power to hear cases in law or equity where the state is sued in its sovereign capacity is confirmed by the eleventh amendment:
“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
Here, the states would not allow even an individual to sue the state in a case in law or equity. How much less would a politically sovereign body-politic willingly grant power to the federal judiciary in cases of political sovereignty?
Additionally, the US Constitution does not extend the federal judiciary’s power to “all” cases in controversy between two or more states or between the states and the federal government, despite the fact that the federal judiciary’s power does extend to “all cases in law and in equity.” There is obvious and distinct limitation of power of the federal court regarding controversies (which by definition require the court to be capable of ruling on a legal issue in a case–not a political issue of sovereignty) of states, because the drafters intentionally left the word “all” out of those matters. This omission shows that the states did not concede to making the supreme court the “common judge” over matters involving their sovereignty.
Political maxims of natural law confirm that states may retain the right to judge the constitutionality of third party actions regarding their sovereignty, where they have not granted such power to a third party court:
“[T]he one who does the damage has by his injury broken off the intercourse of right between us, [and] it will be permissible for me to employ against him any force at all…until…he has pledged his good faith once more to observe towards me for the future the offices of the law of nature. And all this is in place between those who do not recognize a common judge among them, whether they be individual moral persons, or…societies.” Pufendorf, 342 (emphasis added).
U.S. Senator, Robert Hayne, held this position that the states in no way and in no place ceded questions of state sovereignty to the federal court:
“It is clear that questions of sovereignty are not the proper subjects of judicial investigation. They are much too large, and of too delicate a nature, to be brought within the jurisdiction of a court of justice. Courts, whether supreme or subordinate, are the mere creatures of the sovereign power, designed to expound and carry into effect its sovereign will. No independent state ever yet submitted to a judge on the bench the true construction of the compact between himself and another sovereign.” John Dillon, Historical Evidence of the Origin and Nature of the Government of the United States of America, quoting Robert Hayne, (New York, NY, S.W. Green, 1871), 20-21 (emphasis added).
Is this not what Alexander Hamilton said in Federalist Paper 22: “[The constitution’s] true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations.” (emphasis added).
Since Congress cannot control state sovereignty through its laws, by necessity, the federal supreme cannot control state sovereignty through its judgments. Laws and judgments are reciprocally bound to each other: a law can do no more than a judgment can uphold: a judgment can do no more than a law can enforce. Just as a state court does not have the power to dictate the powers of the other political branches in that state government (legislative agents, executive agents and the sovereign principals), so too, the federal court does not have the power to control the state sovereign actions–the other independent political departments of the union. Hamilton confirms this in Federalist Paper 82:
“[T]here is not a syllable in the plan under consideration which…gives them any greater latitude in this respect than may be claimed by the courts of every State.”
Hamilton makes the comparison between state and federal courts, saying that the federal court’s jurisdiction is limited just as the state court’s jurisdiction is limited, namely, the courts cannot rule on matters that belong to other political branches and to the sovereigns themselves. Just as a State court cannot deny another independent political branch the powers it was granted under the constitution, so too, the federal judiciary cannot deny the independent state sovereign body-politic its powers reserved under the constitution.
Determination of Federal Usurpation
Vieira made mention that there is no real way to determine who is the usurper and who is not in situations of federal encroachment because (1) there is no legal order or ruling to make that determination and (2) the usurpers all act under color of title, despite there being no legitimate grounds for their action. Consequently, the states would have no real recourse against tyrant or any malfeasance until a legal order (from the federal supreme court of course) overrules the unconstitutional acts.
However, this presumes that the US S CT is the ultimate watchdog against tyranny and is actually going to make a determination of the issue of federal encroachments upon state sovereignty. As has been seen over the past many generations, the US S CT has done anything but limit Congress’ supposed plenary power from the retained powers of the states. The influence and preservation of state sovereignty has diminished to the point of being merely a “truism” by the US S CT. Was this the effect our ratifiers wanted? Far from it.
Even if the US S CT ruled that Congress’ power to do this or that encroached upon state sovereignty, what power does this give to the States? It gives no power at all. It has no force or compulsion attached. Only executives can carry out laws. Moreover, the federal ruling only confirms what power existed in the first place. Again, this grants no power. Power comes directly from its source: the people of that body-politic. This is why a court’s ruling is called an “opinion.” Alexander Hamilton confirms that the federal judiciary has no power to enforce anything, and as such, is not to be feared by the other political branches of government:
“[That the federal judiciary is not likely to encroach upon another’s powers] may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force.” Alexander Hamilton, FP 81 (emphasis added).
Hamilton makes the observation that the courts are limited to their nature, objects, manner of exercise and their weakness, all of which confirm that their rulings do not involve the political powers of the other two branches, which are completely independent of the court. This concludes as well that their objects do not include the powers of the state sovereigns, which are completely separate from the court.
To suggest otherwise is to argue that the power to hold back federal encroachments upon the states is given to the President alone, as the court has no power to enforce its own judgments. So, are we to presuppose that the constitution left the defense of the “hens” (states) to the “foxes” (federal government)? This makes no sense. Again, why would the states have insisted on their right to protect the “security of a free state” (in the second amendment) if their defense rested within the federal government, viz a viz, the military? The states were more leery of the military than the courts.
Even assuming that the US S CT attempted to maintain the lines of sovereignty, this does not address cases where it is not possible to make specific accusations against the federal government’s encroachments. Are individual states left to suffer until three fourths of the states amend the constitution? This is nonsense. The states can do what our founders did in the declaration of independence, using their inductive and deductive reasoning regarding the federal government’s intent “to reduce [us] under absolute despotism.” This is the natural right of every body-politic.
This inability to make specific accusations for cases at law or equity is all the more reason why individual states must hold the federal government to their limitations. Think of it: what incentive do individual states have to protect freedom within their borders where the responsibility to do so is left in the hands of the US S CT? Moreover, what incentive does the federal government have to stay within their limits where there is no practical check upon their power other than the slow-wheel of mis-constructed court decisions, if that? This does not comport to a federal system whatsoever. It does not even comport to the English system of politics under which the colonies suffered. Without the practical use of states to enforce the compact individually, as they are required to do through their oath to support the supreme law of the land, the federal government has very little limitation. What genius is there in that system?
Unfortunately, for too many years, the states have (to their detriment) attempted to use this “only” manner of recourse through federal courts, virtually ignoring their inherent and retained powers as a sovereign state. “Business as usual” is great for tyrants, but horrible for freedom. The states have ignored the political maxim admitted by Alexander Hamilton that “every government ought to possess the means of executing its own provisions by its own authority.” FP 80. Perhaps there was a time for the use of the courts as the most peaceful means of redress available. But at some point, prudence demands more than begging for justice at the foot of the king and his agents.
A Concurring Opinion For Secession, Part 8
(Continued) Anti-Secessionist Argument #3: Only the U.S. Supreme Court has the power to determine the lawfulness of a State’s Power and Authority to Secede
Protecting A Free State
It is curious to argue that the States are not sovereign, independent states (which is in fact the conclusion for anyone who argues that the States are bound to the US S CT decisions regarding their sovereignty and their right to secede) when the US Constitution guarantees the right of the people to keep and bear arms, the purpose being to secure a FREE STATE: “A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” Vieira even has a two volume series on the power of the states to defend their borders against unlawful invasion (which is excellent by the way). If the states did not retain the sovereignty to protect itself from invasion of enemies both foreign and domestic, how could they be left with the right of military action within their state regarding internal protection?
The second amendment (as well as the Constitution of the Confederate States of America) acknowledges that the states in the union are free; and to remain free, they must have the capacity and capability of defending themselves even from the federal government, as Alexander Hamilton explains in the Federalist Paper 26:
“dangers [from the federal government] so formidable can[not] assail the whole Union…if we take into our view the aid to be derived from the militia.”
Any studier of America’s history during that time knows that the states did not want the federal government to have a standing army for fear that the federal government would usurp the states’ powers through force. Thus, the states retained the means to defend themselves–the natural right of every person and body-politic. How much more often will states be attacked through usurpations of federal law and judgments? Much more! Attacks are not always violent in nature, but can go to the very principles that ensure freedom in the first place.
Are the states to become slaves at the mere force of laws, when they reserved the right to defend their state against threats of force?
Yet, we are to somehow believe that those same states, which the Constitution acknowledges have a pre-existing right to protect themselves through use of force and militia action, must submit to unconstitutional laws upheld by the US S CT even though the states, through their agents, swore to uphold the Supreme Law of the Land to the contrary, as well as their sovereign powers under the Tenth Amendment–also the Supreme Law of the Land.
Conflict of Interest
That the states must wait for a US S CT decision in their favor is very interesting, for one very important reason: the US S CT is subject to the control only of Congress and of course appointed by the President. The only federal controls over the US S CT lie in the hands of the government competing against state sovereignty. That the states would be bound to the rule of this federally-controlled body of unelected men contradicts the very the purpose of a judiciary, which is for a conflict-free, unbiased resolution of an issue at law or equity. Yet, as Alexander Hamilton says in Federalist Paper 81 regarding the fear that the US S CT will not uphold federal laws that are in fact constitutional,
“[T]he inference [that the federal judiciary will not overrule constitutional laws] is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security.
“There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments.” (emphasis added)
Ok, so Congress is protected from the likelihood that the US S CT will overrule its laws because of the threat of impeachment. Now what about the state sovereigns? What assurance and protections do they 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 unconstitutional laws perpetually? I guess if you are content with you and your posterity living in slavery, this is fine. If the US S CT is in truth to be the state’s protection against federal tyranny, our founders did a sloppy job at building the wall of separation between state and federal.
General Limitation of Federal Judiciary
Undoubtedly the states could not have been so naïve as to put such a critical power of self-preservation into the hands of a few men who are appointed for life by the President, who are a part of the government competing against the states, and whose duration and position was subject to the impeachment of Congress. If they were so short-sided and mal-perceptive, perhaps the entire system itself could be called into question, as well as the founders’ intent and their choice of words.
The truth is, the federal supreme court was not given the power to protect or 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. Why else would the tenth amendment have been insisted upon if it could be destroyed by the US S CT? The right of protection was in the individual states.
Given that the extensions of power to all the branches of the federal government are identical to the same objects and their powers are identically limited not to interfere with state sovereignty, it would be very unlikely that the constitution meant to give power of the matter of state sovereignty to only one branch of the federal government, especially when it was clearly understood that government actions can only be taken “as far as that authority extends.” Samuel Pufendorf, Two Books on the Elements of Universal Jurisprudence, (Indianapolis, IN, Liberty Fund, 2009), 297; See Also, Alexander Hamilton, FP 27, “[T]he legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS.” (emphasis added for “courts”)
The only purpose of courts is to provide an unbiased forum in which parties to a dispute may have their matter fairly tried and decided. “No man ought certainly to be a judge of his own cause.” Alexander Hamilton, FP 80. 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). So 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 interest in the opposing party to the “case,” that is, the federal government? That is impossible and flawed.
Article 3’s Specific Limitation of Power
It has long been recognized that a courts’ power can no more extend to matters than what the corresponding legislature can reach. The state courts can reach matters to the extent of the state’s sovereignty and the federal courts can reach matters to the extent of Congress’ sovereignty. Thus, where Article 1, section 8 (the powers of Congress) do not concern determination of state sovereignty, the parties to the compact, the nature of the union and the powers of body-politic, the federal courts can have no jurisdiction over the same under Article 3. Alexander Hamilton reflects this maxim in Federalist Paper 80, stating:
“[T]he judiciary authority of the Union ought to extend…to all those which arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation.”
To say that only the federal supreme can decide the power of the states to secede concludes that Congress has the same power to prevent a state to secede. Yet, we know that the logical deduction and proper construction are, where the federal laws are NOT passed pursuant to their just and constitutional powers of legislation, the federal courts do not have power to enforce them, viz a viz, the states have a right and the power to resist them, as Hamilton said in Federalist Paper 16. Truly, all articles of the constitution granting power to the federal government do not include the power to invade the powers reserved to the states under the tenth amendment.
What is more telling about Hamilton’s statements in that section is that he admits that the federal court has two possible powers regarding state laws that contradict the articles of the constitution: (1) a direct negative on the State laws, or (2) to overrule such as might be in manifest contravention of the articles of the union. To his own suggestion, he follows:
“There is no third source that I can imagine. The latter (to overrule) appears to have been thought by the convention preferable to the former, and, I presume, will be most agreeable to the States.” FP 80.
This provision is very telling, because Hamilton admits the difference between the federal court’s power to “negative” the state law altogether, without regard to state sovereignty (which was rejected at the convention) and the power to “overrule” those state laws that are “manifestly,” or put differently, “expressly,” “patently,” or “obviously” in contradiction to the articles of the union. This limits the court’s power considerably, because it requires that the matter over which the court overrules the state law does not have a negative (or cancelling) effect; and it does not include those matters that are not manifest, or put differently, matters that are not expressed in writing and in definite words in the constitution. Finally, this admission evinces the fact that the States would be more “agreeable” to this type of court power, since it does not encroach upon their state sovereignty to resist those federal actions it determines unconstitutional.
Obviously, Hamilton had a blatant bias regarding the federal court’s ability to “negative” state laws. The constitution convention notes reveal that this same “negative” power was proposed to be placed in the federal judiciary (and legislature) by Pinckney, Madison and Hamilton. Yet the convention rejected this power. Isn’t it funny how Hamilton ignores this fact in his paper, yet still suggests it has this “legitimate” court power? Same goes for Madison in Federalist Paper 39.
The states were not giving up their rights of state sovereignty; and were it not for that fact, they would have never ratified the US Constitution. For this similar reason, John Taylor raises the following point:
“[W]e must determine, whether the enumeration of federal judicial powers, is not a limitation and restriction like the enumeration of federal legislative powers. Congress is empowered to ‘make all laws necessary and proper for carrying into execution the powers vested by the constitution of the United States.’ The federal power is extended only ‘to all cases in law and equity arising under the constitution.’ The analogy between these expressions is considerable. Neither conveys a power to alter the terms of the compact between the states. Both must therefore have been intended as respectively prohibiting the federal legislative and judicial departments from effecting this end, either by laws or judgments.” John Taylor, New Views of the United States Constitution, 133.
The fact that Article 3 only “extends” jurisdiction to the federal judiciary necessarily means that the states, through the US Constitution, limited the federal court’s jurisdiction to only those matters that Congress has the constitutional power to enact. This means they do not have the power to rule on just any matter they deem “arising out of the constitution.” Rather, they are limited to “cases in law and equity” and “controversies,” though expressly not “all controversies.” As understood by our founders, this grant of power in no way granted them jurisdiction over the matter of state sovereignty, which is expressly reserved to the states themselves in the tenth amendment.
A Concurring Opinion For Secession, Part 9
(Continued) Anti-Secessionist Argument #3: 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.”
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-pro-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 his 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.
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 (emphasis added).
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.
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.”
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 and self-defense include secession.
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.
The next articles will address, Anti-Secessionist Argument #4: 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.
