ON PART TWELVE OF “A CONCURRING OPINION”
Dr. Edwin Vieira, Jr., Ph.D., J.D.
April 8, 2010
Timothy Baldwin’s “A CONCURRING OPINION FOR SECESSION (Part 12)” continues his argument that a State’s supposed “right to secede” from the Union does not depend upon any procedures within the Constitution (such as the process for amendment in Article V), and then closes with a ringing rhetorical defense of his position. Although I have already addressed most of Mr. Baldwin’s legal contentions in earlier parts of my response to his commentaries, his twelfth article does raise a few issues that merit close consideration.
1. Mr. Baldwin poses the question, “Are you to argue that three-fourths of the states [through the process of amending the Constitution] have the implied power to cause detriment to the remaining one-fourth of the states without any remedy being left to the remaining one-fourth of the states?” The answer is that Article V grants explicit (not merely implied) power for three-fourths of the States to enact amendments, even when vehemently opposed by the remaining one-fourth of the States—opposition from which, doubtlessly, would reflect their determination that the amendment in issue would “cause [them] detriment”. That, however, is the “compact” to which all of the States voluntarily assented; and, as with any “compact”, the parties must take the bitter with the sweet. Is this not exactly what happens, too, in Congress—and even more pointedly there, in that mere majorities in the House and Senate can enact legislation that will “cause detriment” to those in the minority? But if the legislation is constitutional, do those in the minority have a “right” to complain, in the sense that those in the majority have a “duty” to repeal the offensive legislation? And surely no one doubts that “enforcement [of such laws of the United States] is no invasion of state sovereignty. No law can be, which the people of the States have, by the Constitution, empowered Congress to enact.” Ex parte Virginia, 100 U.S. 339, 346 (1880).
Mr. Baldwin also asks, “Did not our constitution attempt to limit all vestiges of a tyrannical majority?” The correct answer to this question is, “The Constitution does not countenance tyranny of any kind; but in some of its procedures it does allow for ‘majority rule’, usually by simple majorities and in extraordinary cases by super-majorities.” Let us, after all, recall what “tyranny” actually is. It is not synonymous with majority rule, as applied in a legislature enacting constitutional laws according to constitutional procedures. Rather, as John Locke defined it, “Tyranny is the exercise of Power beyond Right, which no Body can have a Right to. And this is making use of Power any one has in his hands; not for the good of those, who are under it, but for his own private separate Advantage”. An Essay Concerning the True Original, Extent, and End of Civil Government (1698), Chapter XVIII, § 199. As its Preamble attests, the Constitution requires that the General Government “provide for the common defence” and “promote the general Welfare” in all of its actions—and if it tries to do so in good faith, then, by definition, those acts are not “tyranny”, notwithstanding that (as is almost always the case) even the most scrupulous regard for “the common defence” and “the general Welfare” cannot be expected to leave everyone in the country equally safe and well off.
2. Mr. Baldwin then contends that,
[i]f the argument goes that the amendment clause [that is, Article V] put all of the ratifying states on notice that secession could only be accomplished through three-fourths of the states, then the remaining one-fourth of the states would most certainly argue that the amendment clause never admits the right of three-fourth of the states to deny them the use and benefit of the (permanent and perpetual) union itself, but only that the terms of the constitution could be changed—not the parties.
Now, Mr. Baldwin is correct that the process of amendment cannot be employed “to deny [any of the States] the use and benefit of the (permanent and perpetual) union itself”. We know that, though, not because Mr. Baldwin says so, but because Article V says so—namely, “that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate”. Observe that, if this restriction did not appear, then, because of the otherwise unlimited nature of Article V, an amendment of the Constitution could “deprive[ a State] of its equal Suffrage in the Senate”, and possibly of any “Suffrage” there, in effect expelling the State from the Union (or at least denying it equality of membership in the federal system, which in practice could amount to the same thing). Also observe that, “with[ ] its Consent”, a State may be “deprived of its equal Suffrage in the Senate” under Article V. And exactly how would that come about? Self-evidently, by a State’s affirmatively seeking such a result through the process of amendment. But a State would never affirmatively seek to surrender the benefit of her equal suffrage in the Senate, yet remain subject to all the burdens of the Constitution. So, if a State would consent to be “deprived of its equal Suffrage in the Senate”, she would do so only as the consequence of an amendment allowing her to leave the Union entirely, giving up the benefits but also being relieved of the burdens at the same time. Inasmuch as Article V plainly contemplates the possibility that, under some circumstances, a State would consent to give up her “equal suffrage in the Senate”, Article V plainly contemplates as well that a State could choose to leave the Union (or “secede”) by the process of amendment. Mr. Baldwin, of course, claims that “only * * * the terms of the constitution c[an] be changed—not the parties”. But on what legal authority he bottoms this contention he does not say. (In the common law of contracts, for example, this result could be had by a “rescission” or a “release”; so why the same principle could not apply to the constitutional “compact” through an “amendment” is not clear.) And even if he could identify some general legal rule to his purpose, he would still have to prove that it is capable of overriding Article V.
Mr. Baldwin then asks “Why Not Require Three Fourths of the
States to Correct State Action, As Opposed to Federal? * * * [W]hen
the suggestion is made that an individual state has the right to resist
the federal government until and unless three fourths of the states
declare otherwise through ratification [of a constitutional amendment],
they reject it out of hand.” I have no idea who the “they”
are to whom Mr. Baldwin refers. But I know that I do not “reject
* * * out of hand” his contention. For example, with respect to
the unconstitutional and economically destructive Federal Reserve System
which rogue public officials in the General Government have foisted
on America, the States certainly do have “the right to resist”—in
particular, by selecting for their own use an economically sound and
constitutional alternative currency in preference to Federal Reserve
Notes. The States’ constitutional right to do so has been upheld
even by the Supreme Court. Lane County v. Oregon, 74 U.S. (7
Wallace) 71 (1869); Hagar v. Reclamation District No. 108,
111 U.S. 701 (1884). So, this is an area in which three-fourths of the
States would be required to support a constitutional amendment to prevent
such resistance by individual States.
4. Finally, Mr. Baldwin complains that “[t]h[e] right of secession would prove to be too inconvenient, unionists say, and thus it should be ‘unconstitutional’”. Again, I have no idea who the unnamed “unionists” are to whom Mr. Baldwin refers. But I know that I find “secession”, not to be unconstitutional because it is “too inconvenient”, but to be too inconvenient because it is unconstitutional. If proponents of “States’ rights” and “individual rights” really want to oppose usurpation and tyranny flowing from rogue public officials in the General Government (and all too often from rogue officials in the States, as well), they must do so without invoking purported “remedies” that themselves smack of usurpation or other forms of illegality. In addition, they must propose remedies that, as a practical matter, have a reasonable chance to succeed. Even in the hands of one of the greatest warrior races known to history, kamikaze tactics proved unavailing.
“Secession” as most “secessionists” define that term cannot be justified under the Constitution. It can be justified in principle under the Declaration of Independence, but only when the conditions precedent required by the Declaration of Independence obtain. And even then it can be justified in practice only if a “seceding” State is fully prepared, before she “secedes”, to deal with all of the political, economic, and social consequences of her action. What does this entail?
Assume for purposes of argument that both the people and their government in State X want to “secede” from the Union. (That assumption itself requires an heroic act of faith and suspension of disbelief; but Mr. Baldwin’s enthusiasm for the idea and eloquent support of it in his commentaries suggest that it might happen.) Now what must State X do? I suggest the following sequence:
(i) State X seeks a constitutional amendment permitting her “secession” from the Union. If she succeeds, her problem is solved. If she fails, she at least has added an important “Fact[ ] submitted to a candid world” (as the Declaration of Independence put it) in support of the conclusion that “secession” is her only alternative, by proving that Congress and the rest of the States are deaf to her legitimate complaints.
(ii) At the same time, State X seeks a determination by the Supreme Court that she may “secede” on the basis of some legal theory that does not involve amendment of the Constitution. Again, if she succeeds, her problem is solved; whereas, if she fails, she at least has added another important “Fact[ ] submitted to a candid world” in support of her position, by proving that resort to the Judiciary is bootless.
(iii) While steps (i) and (ii) are going forward, State X adopts an economically sound alternative currency and revitalizes her Militia—both of which measures she is entitled to take right now, without anyone’s permission. If State X succeeds in these measures, she may discover that “secession” is unnecessary, because the example she sets may galvanize other States into similar action, totally changing the balance of power between the States and rogue public officials in the General Government. In any event, State X will be prepared to deal with the vicissitudes of “secession” in regard to her own economy and “homeland security” if “secession” eventually does become necessary.
(iv) At all times, State X broadcasts to Americans throughout the country the basis for her desire to “secede” from an oppressive Union, the legal grounds on which she contends that she is entitled to “secede”, and her unsuccessful attempts to exhaust all of her political and judicial remedies, so that the prudence and justice of her cause will be made manifest everywhere.
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If a State is willing to take at least these steps, and succeeds in doing so, she may never have to attempt to “secede”. And if a State is unwilling or unable to take at least these steps, she will never have a ghost of chance to succeed in “seceding”. Audacity can sometimes overcome adversity; but imprudence never can.