PART 2 of 2
Dr. Edwin Vieira, Jr., Ph.D., J.D.
May 12, 2010
Dr. Edwin Vieira, Jr., Ph.D., J.D.
Now, of course, (and in this I concur completely with Mr. Baldwin) the People themselves must be the sole and final judges of whether this dire situation exists, and of how to go about correcting it. As Blackstone taught the Founding Fathers, “whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to”. Commentaries on the Laws of England, Volume 1, at 212. So, no need can ever exist for the People to withhold corrective actions until they have consulted, let alone sought permission from, the very rogue public officials who are attempting “to reduce the[ People] under absolute Despotism”. Nonetheless, the Declaration points to two steps which the People should take before any others:
First, by “let[ting] Facts be submitted to a candid world”, the People need “[t]o prove” in the court of public opinion and before “the Supreme Judge of the world” the “history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny”. Not generalities drawn from musty textbooks of political philosophy, but only specific “Facts” can demonstrate “the rectitude of [the People’s] intentions”. Observe, once again, how the Declaration emphasizes the importance of intent, even on the part of the victims of oppression. Perhaps this is because the Declaration recognizes that human action is, as modern Austrian economists emphasize, “purposeful behavior”. It is not governed by the mindless mechanism of “stimulus and response”posited by behaviorists, or by the dictates of inexorable Fate, but instead results from economic, political, and especially moral choices worked out in the domain of intelligence and free will.
Second, the People need to attempt to rectify the situation through the “Form of Government” that already exists. As the Declaration explains, “whenever any Form of Government becomes destructive of [men’s inalienable rights], it is the Right of the People to alter or to abolish it”. But a whole “Form of Government” does not necessarily become so “destructive” as to warrant its own abolition simply because certain public officials—even fairly large numbers of them—turn rogue. In such a situation, the prudent and economical way to correct the problem is to remove the rogues from office and to punish them in proportion to the seriousness of their violations of the law, not to tear down the “Form of Government” entirely and erect in its place—perhaps in the midst of political economic, and social chaos—some utterly new and untried “Form of Government” the future operation of which is unpredictable. Much wisdom is contained in the folk adage, “If it ain’t broke, don’t fix it!” If it is possible for what is in principle a good “Form of Government” to provide the means to suppress abuses, usurpation, and tyranny by rogue public officials and the corrupt special-interest groups and factions pulling their strings, then those means should be employed. Only when those means have been tried, and have failed, will there be a proven need “to alter or to abolish” that “Form of Government”.
Now, how does “secession” relate to all of this? I presume that “secession” is one means by which a People might exercise their right “to alter or to abolish” a “Form of Government” that has “become[ ] destructive” of the true purpose of government. Yet, even if so, “secession” must conform to the principles of the Declaration of Independence. So, let us test that conformity by considering two hypothetical cases:
[Case 1] The Members of Congress are ignorant, incompetent, and insouciant louts. Because they know no better, they pass a bill that every constitutionalist recognizes as blatantly unconstitutional. The first question is, “Is this an act of ‘tyranny’?” Well, if it is truly the result of negligence—or perhaps just industrial-strength stupidity—then it is probably not “tyranny”. But assume for purposes of argument that it is “tyranny”. That still leaves the second question, “Is this particular act of ‘tyranny’ sufficient grounds for ‘secession’?”
The answer to the second question should be obvious: “No”—or at least “not yet”. Because Congress is not the totality of the “Form of Government” within the United States. That “Form of Government” is federal in structure, consisting of Congress, the President, the Supreme Court, the States, and WE THE PEOPLE in various capacities. And, so far in this example, none of them other than Congress has taken any action whatsoever.
In principle, the rest of the “Form of Government” could correct Congress’s blunder. The President could veto the bill. If the President signs the bill, or Congress overrides the President’s veto, the Supreme Court could declare the purported statute unconstitutional. If the Court upholds the statute, WE THE PEOPLE could petition Congress to repeal it; and if Congress refuses, THE PEOPLE could change the composition of the House of Representatives and one-third of the Senate, and perhaps the identity of the President as well, at the next election. If not enough reform candidates are elected, the States could attempt to take action in the form of “interposition”, to prevent the statute from being enforced within their jurisdictions. And, in the final analysis, WE THE PEOPLE in their capacity as “the Militia of the several States” which are responsible for maintaining “the security of a free State” could see to it in the most direct fashion possible that the offensive statute is not enforced. Observe, though, that each of these potential forms of relief would take place within the Constitution’s framework, not outside of it through “secession”. They would actually test in practice the ability of the present “Form of Government” to function as a true government, before they rejected the possibility of its doing so.
[Case 2] The Members of Congress are not ignorant, incompetent, and insouciant louts, but instead clever men and women of truly evil dispositions. Precisely because they know the bill is an unconstitutional assault on society, they pass it. Clearly, then, this is an act of “tyranny”. That, however, still leaves open the question, “Is ‘secession’ the right remedy?”
Once again, the answer is “no” or “not yet”. If as in [Case 1] other branches of the “Form of Government” can intervene on behalf of the Constitution, the problem can be solved without even asking that question.
But what if the Presidency and the Supreme Court are also populated with aspiring usurpers and tyrants? No relief can be expected from them. And what if the electoral process has been thoroughly subverted—through the manipulation of “public opinion” by the oligopolistic big media and the employment of fraudulent voting machines—so that the old remedy of “throwing the bums out” accomplishes nothing more than bringing in a new bunch of bums? Even were all that true, just as in [Case 1] the States could attempt to invoke “interposition”; and WE THE PEOPLE in their capacity as “the Militia of the several States” could prevent the statute from being enforced. And each of these two possible forms of relief would take place within the Constitution’s framework, not outside of it through “secession”.
Of course, one may posit the further complication that the States are unable to engage in effective “interposition”. Or that the States do not have “well regulated Militia”. Or both. Fair enough. But, if one or both of those circumstances exists, how would “secession” be possible, except on paper in the form of some toothless declaration?
As modern American “secessionists” employ the term, “secession” involves action by an existing State. If the State desiring to “secede” is so feckless, though, that she cannot succeed even in “interposition” in a single instance, how can she expect to succeed in “secession” across the board? If the “seceding” State has no “well regulated Militia”, how can she expect to protect her citizens against retaliation from rogue public officials in the Disgrace of Columbia? And if the “seceding” State has not adopted an alternative sound currency, how can she “secede” economically from the Federal Reserve System and the supra-national financial crime syndicate that controls paper currency and bank credit? On the other hand, if for these reasons “secession” will require the creation of some entirely new political entity to break away from the present federal “Form of Government”, what sort of entity will that be, and how will it be created?
In short, the more I read about contemporary advocacy of “secession”, the more the whole business seems to me to be nothing less than a charming romantic fantasy: In Cole Porter’s words, “just one of those fabulous flights...a trip to the moon on gossamer wings...just one of those things”. But if I were asked to participate in a long-drawn-out project aimed at such a fabulous undertaking, before I invested much time or effort I should ask to see the engineering studies on the wings, to examine the prototype, and then to watch a test flight—perhaps not all the way to the moon, but at least from the roof of the proponent’s house to the roof of the house across the street. And if, as I suspect would happen, the pilot crash-landed onto his own front lawn, I should go back to the rather more pedestrian efforts in which I have been engaged these many years.
Of course, one cannot expect from “secessionists” a full set of plans for “gossamer wings”. Yet a reasonably complete set of plans for “secession” itself is not too much to demand. These plans should include at least the following information:
how the people in a “seceding” State would be educated,
mobilized, and organized in support of “secession”;
Doubtlessly, the readers of this commentary could add many other entries to this list.
Discussions about “tyranny” and “secession” can go on forever in the realm of political theory. Americans do not have forever, though, to debate these matters in the abstract. They must very soon be prepared to struggle through some exceedingly hard times. To overcome the difficulties that will arise will require hard thinking and even harder work. Perhaps “secessionists” can do the former so that other patriots can then do the latter. I, for one, am willing to encourage them to try. But this country cannot afford to wait too much longer for practical results.
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Edwin Vieira, Jr., holds four degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School).
For more than thirty years he has practiced law, with emphasis on constitutional issues. In the Supreme Court of the United States he successfully argued or briefed the cases leading to the landmark decisions Abood v. Detroit Board of Education, Chicago Teachers Union v. Hudson, and Communications Workers of America v. Beck, which established constitutional and statutory limitations on the uses to which labor unions, in both the private and the public sectors, may apply fees extracted from nonunion workers as a condition of their employment.
He has written numerous monographs and articles in scholarly journals, and lectured throughout the county. His most recent work on money and banking is the two-volume Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution (2002), the most comprehensive study in existence of American monetary law and history viewed from a constitutional perspective. www.piecesofeight.us
He is also the co-author (under a nom de plume) of the political novel CRA$HMAKER: A Federal Affaire (2000), a not-so-fictional story of an engineered crash of the Federal Reserve System, and the political upheaval it causes. www.crashmaker.com
He can be reached at his new
Discussions about “tyranny” and “secession” can go on forever in the realm of political theory. Americans do not have forever, though, to debate these matters in the abstract. They must very soon be prepared to struggle through some exceedingly hard times.