The following is a response to a comment on the article “SECESSION: DOES A STATE HAVE THE RIGHT TO SECEDE FROM THE UNION?”
I appreciate your comments so very much. We apparently both went through the same epiphany. If more people can think things through the way that we have – and I don’t mean that to sound arrogant, as if we have any greater capability to reason and apply logic than anyone else – than our country would be in a far better place.
I talk to people about the Constitution all the time and the one thing that I hear, especially from liberals and young people, is that the Constitution needs to be a “Living Document” because there is no way that 18th century colonists could have predicted the problems and advances we would have today. They point to the internet, the high divorce rate, the increase in homosexuality and their “rights” to be married, the increase in diversity, the increase in the number of atheists in the country, the increase in poverty and unemployment, and more. Unfortunately, these people have no idea how much our Founding Fathers knew because human nature tends to be predictable under similar circumstances. Arguably, however, the only thing that they couldn’t have fathomed is the internet. As bad as things are now… as crazy as things are with people exploring all kinds of lifestyle choices and sexual preferences and making all kinds of individual statements, our Founders have studied cultures far worse. There is nothing in this country that our Founders didn’t appreciate from looking at the Roman Empire, the Greeks, the Egyptians, the Saxons, the Normans, medieval England… I’m finishing a paper now that makes the argument that it is precisely because our Founders studied the fates of almost all the regimes of history that they uniquely understood that power must always remain in the people’s hands and they must always have the power over the life and death of their government (particularly when it becomes oppressive). For that reason, they gave us a government grounded on timeless principles. These principles were announced in the Declaration and were embodied within the framework of our Constitution…. principles such as the sovereignty of the Individual (inherent, inalienable rights), the fact that government serves the people and not vice versa, and the right to abolish a government that becomes destructive of the rights and interests of the people. Our Constitution is not a “living document” because it’s foremost goal is to protect these fundamental principles. And so, very simply but eloquently and brilliantly, our Founders gave us a limited government, with several checks and balances so that it can always be in service of and accountable to the people. Believing that our Constitution is no longer a strict document but one that “lives and breathes” is an undisciplined license to chip away at all those protections that are given to us as against our government.
That is why, in a nutshell, that I believe that secession is a fundamental principle. I believe it is as fundamental as the declaration that our rights are endowed by our Creator – inherent, fundamental, and inalienable.. never to be separated from us by a government. The very birth of our nation was a result of secession. The Declaration of Independence was a secessionist document pure and simple. If you compare it to the Articles of Secession submitted by South Carolina, for example, there isn’t much difference at all. They fundamentally state the very same things.
The Civil War was not a war over the “right” of secession, and that’s naive and ludicrous for Justice Scalia to suggest to. It was a war over an act of secession. The states remaining in the Union (the northern states and western states), led by President Lincoln, were determined not to let the southern states break their bonds of allegiance. It was a war declared by President Lincoln to forcibly restore the Union. It was an act of aggression blinded by the personal and incorrect views of the Constitution, as well as the personal perceptions of the Union, by a tyrant president. It was a war forced upon the South to deny them their rightful exercise of self-determination. The only thing settled by the Civil War is that the stronger army defeated the weaker army and unto the victors go the spoils of war. Hence, the North succeeded in forcing the southern states to re-join the Union… against their will and against their fundamental rights of self-determination. Court decisions are all over the place on secession, but no court of law can take away the rights of free men because the most fundamental principle upon which our country was founded is that the individual is the source of all rights and powers. It is from the individual that government precedes. Governments enjoy powers that are borrowed from the people so that they can serve the people. People delegate their power and they can take it back. Courts are instruments of government and therefore can never trump the individual.
That’s why we have all the nullification movements springing up. That’s why states are passing “Sovereignty Resolutions.” They are stepping up to re-assert their sovereignty and their rightful position as parties to the compact that created the Union and therefore to the agreement that created the government. Government is “their creation” on behalf of the people.
When I talk to groups about the original intent of government and “Nullification” and even secession, I ask them this question: “Imagine that our President is Adolf Hitler. He is beginning to take away staples such as the right to speak out freely, to assemble, to publish news, to own a gun, to be secure in your home, to own property, and to be free from searches and seizures by government. How would you want your government to operate? Would you want those checks and balances to work faithfully? Would you want your state to stand up to him and shield you from his tyrannical demands? Would you want your state to dissolve all political bonds with him and take your chances as an independence sovereign state rather than submit, fearfully, your property and even your life? What is life worth when a government holds all the power over that life – making all major decisions for you and restricting your choices?
It was unfortunate that a conservative justice of the caliber of Antonin Scalia chose to take a position opposing secession. I take it you are referring to that brief letter he wrote a young screenwriter in 2006, in which he wrote: “I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court. To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, “one Nation, indivisible.”) Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit. I am sure that poetic license can overcome all that — but you do not need legal advice for that. Good luck with your screenplay.”
Again, I believe he twisted the constitutional issue upon which the Civil War was fought. In fact, there was no constitutional issue at the core of the Civil War. It was a principle and not a constitutional issue… It was (and is) the very principle which guided our very creation as an independent nation.. the right of a people to chose their form of government. Another principle was the one which voluntarily pulled us together as nation of sovereign states – the law of compact.
Justice Scalia understands the power of contract (compact). He is a strict constructionist who looks to the intent of parties when they enter into an agreement. No state intended to be organized and permanently bound into a federation with a government that could ultimately destroy their sovereignty and interests. The greatest concern on the part of the states at the time of the adoption of the US Constitution was their sovereignty. They debated very strongly over whether the creation of the Union thru the Constitution would undermine their sovereignty. The Federalist Papers assured them that the only loss of sovereignty would be in the very limited areas of regulation assigned to the federal government (see Federalist No. 45). Look what Scalia wrote in his scathing dissenting opinion this past June in the Arizona v. United States decision (state immigration law SB 1070; decided June 25, 2012): “But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws? A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? Today’s judgment surely fails that test. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.”
Many states don’t agree with Justice Scalia, and as we all know, the states are stronger than the federal government. The states created the federal government. It is their creation. As Federalist No. 45 makes abundantly clear, the bulk of power remains (“is reserved”) to the states. This is our Tenth Amendment. Just ask the state of Montana if it agrees with Justices like Scalia. In 2008, while it was waiting for the US Supreme Court to hand down its opinion in District of Columbia v. Heller (second amendment case), the Montana State Legislature passed a resolution, a “State Sovereignty” Resolution – H.J. 26 – asserting its state sovereignty and announcing that if the Supreme Court failed uphold the 2nd Amendment as an individual right to have and bear arms, then the state of Montana would consider it a fatal breach of the Compact and therefore it would nullify and void its bonds with fellow states. In other words, it threatened secession if the Supreme Court took away gun rights.
[Heller was the first time in seventy years that the Supreme Court heard a case regarding the central meaning of the Second Amendment and its relation to gun control laws. The District of Columbia passed legislation barring the registration of handguns, requiring licenses for all pistols, and mandating that all legal firearms must be kept unloaded and disassembled or trigger locked. A group of private gun-owners brought suit claiming the laws violated their Second Amendment right to bear arms. The government claimed the 2nd Amendment only applies to militias, such as the National Guard, and is not an individual right. The federal district court in DC sided with the government and upheld the federal ban on private gun ownership. The Court of Appeals reversed. With four liberals on the Court who believed that the second amendment was only a collective right and Justice Anthony Kennedy as the justice who sits on the fence, the right to have and bear arms was precariously close to being destroyed]. Montana was not willing to take a chance. It was not going to sit by, as a neutered, lobotomized party, and allow the government to fundamentally alter the terms of the US Constitution.
Of course Scalia’s letter gives a powerful reason why the Supreme Court should not be the ultimate arbiter of legal decisions in this country. The Court is itself a branch of the federal government, and the federal government has shown a steady increase in the desire to concentrate power in itself. Nullification is a rightful remedy that puts checks on all branches of the federal government, including the courts. We need to get more people and more states to embrace this concept…. AND QUICKLY !!
We also need to Repeal the 17th Amendment ! And get more states to adopt State Sovereignty Resolutions !