Thoughts on a Concurring Opinion

“The right of a State to secede” means different things to different people—not all of whom are careful to define their terms.

Secession and states' rights
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Last Updated on October 3, 2021 by Constitutional Militia

Responding to Timothy Baldwin’s “A CONCURRING OPINION FOR SECESSION (Part 1 of 12)”

I welcome the opportunity to have an ethereal discussion with Timothy Baldwin—it will not be a “debate”, as we agree on too much—concerning “secession”, not only because of the intrinsic value of the subject, but also because of Mr. Baldwin’s erudition and gentlemanly manner. No one in this discussion will, to use his words, “try to paint advocates for states’ rights as loony, nutty, irrational, or otherwise enemies to the union”—because we all know that “some of the most well-recognized[,] intelligent and articulate statesmen and patriots throughout America’s history have advocated the right of States to secede from the Union, both under the Articles of Confederation and United States Constitution”. And we also know that many eminent statesmen and patriots have taken the opposite position. Interestingly, too, both Mr. Baldwin and I “advocate[ ] the right of States to secede”, albeit in some particulars under different circumstances and procedures. Which points up a problem in this discussion: namely, that “the right of a State to secede” means different things to different people—not all of whom are careful to define their terms—which no doubt is why there has been so much (probably unnecessary) dissension on this subject over the years.

To clear the decks for action, I shall agree with Mr. Baldwin on several key points that he sets out in his article “A CONCURRING OPINION FOR SECESSION (Part 1)” (sometimes, though, with my agreement properly qualified):

1. It is not my belief, as it is not his, that “the states do not have the power to do any act contrary to the federal law until the supreme court rules that the law is unconstitutional”. The States certainly do have such a power, and with it a right and even a duty to act in certain circumstances—if one carefully defines the terms “contrary to the federal law”. For if a purported “statute” of Congress is unconstitutional, it is therefore void—a legal nullity—from the very beginning, not just after some court has so pronounced it. And during that intervening period from purported “enactment” of the “statute” until the judicial declaration of its unconstitutionality, it must be the prerogative of the States and the people to protect themselves, by all lawful means, against any “enforcement” of that legally nonexistent “statute”. Otherwise, a legal nullity would be treated as an actual “law”, and therefore in that interval would effectively be a “law”, contrary to its utter inability to be a “law” at any time—which of course is absurd.

Well, then, on what constitutional basis can the States enforce their right and fulfill their duty in this regard? Actually, there are many. For one example, Section 1 of the Fourteenth Amendment provides in part that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” (emphasis supplied). The “privileges or immunities of citizens of the United States” include at least all of the freedoms enumerated in the Bill of Rights. See, e.g., William W. Crosskey, Politics and the Constitution in the History of the United States (Chicago, Illinois: University of Chicago Press, 1953), Volume 1, Chapters XXX through XXXII. And, as the Fourteenth Amendment establishes, every citizen of a State is also a “citizen[ ] of the United States. Now, a State “make[s]” a “law” by enacting a statute of her own. But, besides enforcing her own laws, she might also “enforce a[ ] law” of the United States—either directly, with her own policemen, prosecutors, and judges; or indirectly, by allowing agents of the General Government to operate within her territory for that purpose. If a purported “law” of the United States is unconstitutional, though, and therefore “abridge[s] the privileges or immunities of citizens of the United States”; and if the State allows rogue agents of the General Government to “enforce” that “law” within her territory when she knows of the “law’s” unconstitutionality and could prevent its “enforcement”; then the State is a complicitor in “enforc[ing] a[ ] law which shall abridge the privileges and immunities of citizens of the United States” and of her own citizens. So, in such a case, the State’s constitutional duty—and therefore right—under the Fourteenth Amendment is to oppose any and all purported “enforcement” of that “law” by rogue agents of the General Government when and as it occurs. For, if the State does not act immediately to protect her citizens’ “privileges or immunities”, she contributes by her inaction to— indeed, encourages, facilitates, and approves—the very result the Amendment prohibits. The relevant maxim of the law is: QVI POTEST ET DEBET VETARE TACENS IVBET. (“Who can and ought to prohibit something, by being silent commands it.”) The Fourteenth Amendment does not license the State to sit idly by until some court has issued an opinion on the purported “law’s” unconstitutionality—possibly years later, and even then perhaps the product of error or bad faith. Rather, it declares that “[n]o State shall”, in the here and now. And it declares that “[n]o State shall”, not that some court will direct the State to act or not, and the State must comply in the manner of a mindless robot with the court’s directive, even if the State knows full well that the court’s directive itself violates the Fourteenth Amendment.

This right, power, and duty of a State to prevent oppression of her citizens by rogue agents of the General Government is called the doctrine of “interposition”. It must be distinguished from the doctrine of “nullification”. “Interposition” presumes that a purported “statute” of the General Government is unconstitutional, and therefore unenforceable—and that, as a result of this situation, the State herself should not enforce, or allow anyone else to attempt to enforce, that void “statute” within her territory. The State herself does not declare the “statute” unconstitutional—the Constitution does. The State merely recognizes the existence of this state of affairs. The invalidity of the “statute” is not a matter of the State’s action, but of the “statute’s” objective inconsistency with the Constitution. The “statute” is unconstitutional and therefore void whether or not the State so declares. (And, conversely, the State’s declaration that an unconstitutional “statute” is constitutional cannot make it so.) Whereas, to many people, “nullification” imports the right of a State to refuse to honor a statute of the General Government, even if that statute is constitutional, merely because the State disagrees with the political, economic, or social policy the statute promotes. Obviously, however, if the purported “statute” is unconstitutional, no need (nor even any possibility) exists for the State to “nullify” it, because the “statute” has been and could be nothing but a nullity from the moment of its purported “enactment” as the necessary consequence of its own substance. The State cannot make the “statute” any more null and void than it already is, simply by pointing out its nullity. Of course, the State may (and should) declare her intention not to enforce, or not to allow the enforcement of, the “statute”, because of its legal nullity. But that is a statement of “interposition”, not “nullification”.

2. I agree with Mr. Baldwin that, in some situations, “the individual state’s right to resist federal tyranny is not conditioned upon the approval of three fourths of the states or federal supreme court”—because, of course, in some situations, the “three fourths of the states” or the “supreme court” could themselves be part and parcel of the tyrannous regime. And no one requires permission from a tyrant or his minions in order to resist his tyranny. But one must also recognize that, in some situations, “three fourths of the states” or the “supreme court” might be willing and able to supply a remedy for what appears to be “federal tyranny”, through procedures the Constitution sets out in Article V or Article III or both. In which case, under the doctrine of “exhaustion of remedies”, the first step on the part of an aggrieved State should be to invoke those procedures. If no adequate remedy is forthcoming, either because those procedures cannot supply one or because the “three fourths of the states” or the “supreme court” refuse to abide by the procedures in good faith, or the “federal tyranny” escalates to the point at which any remedy under Article V or Article III will come too late, then the State can consider other means of seeking redress for her injuries.

Thus, here we have another example of why definitions are important. Plainly, “the individual state’s right to resist federal tyranny”—in the sense of her people’s “right to resist” any form of tyranny—is not and cannot be “conditioned upon” anything, except the people’s compliance with “the Laws of Nature and of Nature’s God”. Within the framework of those laws, the people’s right to defend their lives and liberties against any and every form of aggression is absolute. But a State can “resist federal tyranny” within the bounds of the Constitution before she finds herself compelled to “resist” within (say) the bounds of the Declaration of Independence. And that measured course of action not only is not dishonorable or unpatriotic, but also is just (because lawful) and prudent (because careful).

3. I further agree with Mr. Baldwin, without qualification, that “a state has the power and yes, the duty to protect its sovereignty and the powers granted to it by the people of that state”. The practical questions, though, are: (i) whether “secession” is a legitimate means to do so (which depends upon one’s definition of “secession”); and (ii) whether, at this time in the United States as a whole or within any particular State, “secession” would be possible, and (if possible) effective for the purposes Mr. Baldwin cites (which depends upon a careful evaluation of the present “balance of forces” on the side of tyranny and the side of freedom, respectively).

Finally, the readers of these commentaries must keep in mind that my goal, and I am confidant Mr. Baldwin’s, too, is not simply to win an argument—which is ultimately a Sisyphean endeavor anyway, there being no end to argument (particular among lawyers). The point is to come to a conclusion about what can be done, and should be done, to save this country in the very near future. For part two of twelve click below.