Thoughts on a Concurring Opinion

Timothy Baldwin’s “A CONCURRING OPINION FOR SECESSION (Part 6 of 12)” raises a new issue as to which both he and I completely agree: namely, 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. So, “debating” this issue hardly seems worth an expenditure of verbal electrons. Nonetheless, Mr. Baldwin does make a few assertions on this general subject, as well as on various others, that warrant scrutiny at this juncture.

1. Mr. Baldwin writes with some heated sarcasm that

[t]o 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 compatible. 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.

If, when he derides the idea as “comical (from an outcome perspective)”, he means that he would expect the Supreme Court to rule against a State’s supposed “right to secede”, he obviously fears that the arguments he is marshaling in his series of commentaries would have little to no persuasive power in the courtroom. (Of course, that may be because he is raising the wrong arguments. For, if he argued, as I should, that States can “secede” through amendment of the Constitution under Article V, I could not imagine that any Justice of the Supreme Court would disagree. Oh, well, maybe one or two…) In any event, it is no argument against the jurisdiction of a court that it might rule against a litigant because he can present nothing but a poor case. On the other hand, Mr. Baldwin may be suggesting that the Supreme Court (or at least its constituent Justices in recent days) would rule against the constitutionality of “secession” (other than through Article V) on some hokey or even fraudulent basis, and be sustained in that misbehavior by the other two Branches of the General Government. To be sure, this is a possibility which, could it be proven, would justify the people of the aggrieved State or States in “throw[ing] off such Government”, under the principles of the Declaration of Independence. One cannot know, however, whether that dire situation would ever obtain until the Supreme Court had been offered the opportunity to rule correctly on the issue, and had refused to do so.

If Mr. Baldwin means that the idea of testing the constitutional of “secession” in the Supreme Court is “meritless (from a historical * * * perspective)”, because there is no historical example of States’ litigating against each other in that venue, he is wrong in the general case. For many examples of such litigation do exist. True enough, in the specific field of “secession” no such case exists. But this is doubtlessly because, when last “secession” was a major national issue, the people who took that extreme step were so headstrong, reckless, and utterly heedless of the disastrous consequences of their actions that they refused even to attempt the peaceful course of litigation before turning to arms (and then foolishly launched a battle of attrition they were unprepared to win)— notwithstanding that the Supreme Court in their day would have been much more sympathetic to their contentions, and far less deadly to their supporters, than were Generals Sherman and Sheridan just a few years later.

If Mr. Baldwin persists in decrying the idea of litigating “secession” as “meritless (from a * * * constitutional * * * perspective)”, he merely exposes his own unwillingness to read the Constitution. For the Constitution expressly states that “[t]he judicial Power [of the United States] shall extend * * * to Controversies between two or more States”, and that “[i]n all Cases * * * in which a State shall be a Party, the supreme Court shall have original Jurisdiction”. Moreover, “all Cases * * * in which a State shall be a Party” would include “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority” “in which a State shall be a Party”. Article III, § 2, cls. 1 and 2. Self-evidently, then, a “Case[ ]” or “Controvers[y]” between two or more States that raised the question of the constitutionality of “secession” would fall squarely under “[t]he judicial Power [of the United States]” and would be properly brought within “the original Jurisdiction of the supreme Court”. To date, such a “Case[ ]” or “Controvers[y]” has not arisen. But, pace Mr. Baldwin, the Constitution in so many words says that it can.

If Mr. Baldwin means that the idea of testing the constitutionality of “secession” in the Supreme Court is “meritless (from a * * * principle perspective)”, he is himself being unprincipled and imprudent, because a State should exhaust all plausible legal remedies of a non-confrontational nature before taking a step as serious as “secession”.

Finally, Mr. Baldwin’s complaint that the idea of testing the constitutionality of “secession” in the Supreme Court “puts the sovereignty of states on the level of an individual, when the two are not even compatible” is simply beside the point. The Constitution allows for such litigation. And if, in so doing, it “puts the sovereignty of states on the level of an individual”, it does so as the result of the agreement as to that particular on the part of every State that has ratified the constitutional “compact”—proving that, whatever Mr. Baldwin may imagine, the States themselves have never believe that “the sovereignty of states” could not be put judicially “on the level of an individual” where fundamental constitutional issues were at stake. Moreover, the idea of a “test case” on “secession” does not “put[ ] the power of the [Supreme C]ourt to hear and rule on individual cases above what the sovereignty of an entire body-politic can do through its independent political system” in some illegitimate or unfair fashion, because in ratifying the Constitution the States all agreed to this judicial jurisdiction and these judicial procedures. So the States themselves having delegated these powers to the Court, in good faith they cannot now disregard their own grant (in lawyers’ jargon, they are “estopped” from challenging it).

2. Mr. Baldwin next adverts to “a fundamental principle expressed in the tenth amendment: whatever powers the states did not delegate, they reserved. Very clearly from the text, the state never gave up the power to secede in the constitution.” Really? Well, yes, really—because through an amendment enacted pursuant to Article V of the Constitution a State may “secede”. But otherwise? That is somewhat more problematical.

The Tenth Amendment provides 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”. Unfortunately, this tells us nothing about any “powers” in particular, whether related to “secession” or anything else. For that information, we must look elsewhere.

Mr. Baldwin has expended a massive cloud of verbal electrons asserting that the Constitution is a “compact” among the States —so let us see where that leads him on this score. In Part 5 of his series, Mr. Baldwin quoted with approval Vattel’s comment (with which I agree) that “[a] person does not cease to be free and independent, when he is obliged to fulfill engagements which he has voluntarily contracted”. Now, “compacts” or “contracts” are considered obligatory even when they do not contain a provision in which the contracting parties renounce any supposed “right” to “secede” from the agreements. Or, a “right” to “secede” from a “compact” or “contract” is never assumed to exist simply because the denial of that “right” is not explicitly set out in the “compact” or “contract”. Indeed, the mere agreement of a party to a “compact” or “contract”, without more, is taken as that party’s complete and permanent renunciation of any supposed “right” to “secede” from the terms of the agreement. And a party’s later assertion of a supposed unstated but reserved “right” to “secede” from “engagements which he has voluntarily contracted” is treated as an unlawful “breach” of the “compact” or “contract”, which entitles the other parties to the “compact” or “contract” to invoke some remedy for enforcing the agreement against the party violating it.

So, on these grounds, the power legitimately to “secede” from the Constitution was (in the words of the Tenth Amendment) originally “prohibited by [the Constitution] to the States” in Article VII, which provides that “[t]he Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same”—and subsequently has been prohibited to each and every other State as she herself ratified the Constitution and joined the Union. For each State’s “Ratification” perfected that State’s “oblig[ation] to fulfill [the] engagement[ ] which [s]he ha[d] voluntarily contracted”. Implicit in that obligation is a renunciation of a “right” to “secede” from that obligation, or else the obligation would be other than an obligation and the “compact” other than a “compact”.

This obligation is reinforced by the mandates that: (i) “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof * * * shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution and Laws of any State to the Contrary notwithstanding”; and (ii) “the Members of the several State Legislatures, and all executive and judicial Officers * * * of the several States, shall be bound by Oath or Affirmation, to support this Constitution”. Article VI, cls. 2 and 3. Plainly, any purported “secession” by a State would require some kind of trumped-up State “law”—such as an “ordinance of secession”, and then probably a new State “constitution”—to support it. But any such “law” would be unconstitutional ab initio as in violation of “the supreme Law of the Land”; and any attempt by any rogue public official of the State to promote, enact, or enforce any such “law” would violate his “Oath of Affirmation” of office, and thereby constitute the crime of perjury or false swearing. So, inasmuch as no State “law” providing for “secession” could be valid, and no public official of any State could act lawfully under color of his office in support of “secession”, “secession” is constitutionally impossible. (Except, of course, through the process of amendment of the Constitution in Article V, which is itself part of “the supreme Law of the Land”.)

Furthermore, insofar as Article VII and the several States’ “Ratification[s]” of the Constitution have resulted in a “compact” or “contract” among the States, no State may unilaterally “secede”, because: (i) to do so would require her enactment of some purported State “law” that would abolish her obligation under the constitutional “compact” or “contract”; but (ii) Article I, § 10, cl. 1 provides that “[n]o State shall * * * pass any * * * Law impairing the Obligations of Contracts”. As every student of constitutional law knows, this prohibition reaches not only private “Contracts” but also a State’s “Contracts”. Ergo, the Constitution being a “compact” (according to Mr. Baldwin), “secession” (other than through a constitutional amendment) must be unlawful under this clause of the Constitution, too.

Although I may be accused of bringing owls to Athens on this point, I might also rhetorically query Mr. Baldwin as to why—if from the very beginning of the Constitution the States could always “secede” ad libitum, and if this “right” of “secession” was (or should have been) accepted at least implicitly by everyone who treated the Constitution as a “compact” or “contract” among the States—anyone ever believed that the Bill of Rights was necessary. After all, “secession” is the ultimate “Bill of Right” which encompasses every imaginable “State’s right”.

3. Mr. Baldwin then dilates on the unexceptionable point that any attempt by the General Government to encroach on the “reserved” powers of the States would amount to usurpation and possibly tyranny. That is all true enough. And equally true is that the States never agreed to strip themselves of their power to resist such usurpation or tyranny. The Second Amendment made that clear, if the original Constitution’s incorporation of “the Militia of the several States” into its federal system did not.

But a “right of resistance” under and for the purpose of enforcing the Constitution does not include a “right of secession” to remove a State from the Constitution—although the latter right can arise when the usurpation or tyranny is so severe and otherwise irremediable as to justify a State’s direct action under the principles of the Declaration of Independence. That, however, is not an everyday occurrence. For part seven of twelve click below.