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By Timothy N. Baldwin, JD.
February 19, 2010

(Continued) Anti-Secessionist Argument: Only the U.S. Supreme Court has the power to determine the lawfulness of a State’s Power and Authority to Secede

No Common Judge Regarding Sovereignty

Sovereignty is not a matter for a court. Moreover, the words “cases” and “controversies” especially did not mean the matter of state sovereignty. “Cases in law and equity arising under the Constitution” and “controversies” by definition do not mean the political powers possessed by an independent body-politic regarding matters that only sovereigns can determine. That the federal judiciary does not have power to hear cases in law or equity where the state is sued in its sovereign capacity is confirmed by the eleventh amendment:

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

Here, the states would not allow even an individual to sue the state in a case in law or equity. How much less would a politically sovereign body-politic willingly grant power to the federal judiciary in cases of political sovereignty?

Additionally, the US Constitution does not extend the federal judiciary’s power to “all” cases in controversy between two or more states or between the states and the federal government, despite the fact that the federal judiciary’s power does extend to “all cases in law and in equity.” There is obvious and distinct limitation of power of the federal court regarding controversies (which by definition require the court to be capable of ruling on a legal issue in a case--not a political issue of sovereignty) of states, because the drafters intentionally left the word “all” out of those matters.

This omission shows that the states did not concede to making the supreme court the “common judge” over matters involving their sovereignty.

Political maxims of natural law confirm that states may retain the right to judge the constitutionality of third party actions regarding their sovereignty, where they have not granted such power to a third party court: “[T]he one who does the damage has by his injury broken off the intercourse of right between us, [and] it will be permissible for me to employ against him any force at all…until…he has pledged his good faith once more to observe towards me for the future the offices of the law of nature. And all this is in place between those who do not recognize a common judge among them, whether they be individual moral persons, or…societies.” Pufendorf, 342 (emphasis added).

U.S. Senator, Robert Hayne, held this position that the states in no way and in no place ceded questions of state sovereignty to the federal court:

“It is clear that questions of sovereignty are not the proper subjects of judicial investigation. They are much too large, and of too delicate a nature, to be brought within the jurisdiction of a court of justice. Courts, whether supreme or subordinate, are the mere creatures of the sovereign power, designed to expound and carry into effect its sovereign will. No independent state ever yet submitted to a judge on the bench the true construction of the compact between himself and another sovereign.” John Dillon, Historical Evidence of the Origin and Nature of the Government of the United States of America, quoting Robert Hayne, (New York, NY, S.W. Green, 1871), 20-21 (emphasis added).

Is this not what Alexander Hamilton said in Federalist Paper 22: “[The constitution’s] true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations.” (emphasis added).


Since Congress cannot control state sovereignty through its laws, by necessity, the federal supreme cannot control state sovereignty through its judgments. Laws and judgments are reciprocally bound to each other: a law can do no more than a judgment can uphold: a judgment can do no more than a law can enforce. Just as a state court does not have the power to dictate the powers of the other political branches in that state government (legislative agents, executive agents and the sovereign principals), so too, the federal court does not have the power to control the state sovereign actions--the other independent political departments of the union. Hamilton confirms this in Federalist Paper 82:

“[T]here is not a syllable in the plan under consideration which…gives them any greater latitude in this respect than may be claimed by the courts of every State.”

Hamilton makes the comparison between state and federal courts, saying that the federal court’s jurisdiction is limited just as the state court’s jurisdiction is limited, namely, the courts cannot rule on matters that belong to other political branches and to the sovereigns themselves. Just as a State court cannot deny another independent political branch the powers it was granted under the constitution, so too, the federal judiciary cannot deny the independent state sovereign body-politic its powers reserved under the constitution.

Determination of Federal Usurpation

Vieira made mention that there is no real way to determine who is the usurper and who is not in situations of federal encroachment because (1) there is no legal order or ruling to make that determination and (2) the usurpers all act under color of title, despite there being no legitimate grounds for their action. Consequently, the states would have no real recourse against tyrant or any malfeasance until a legal order (from the federal supreme court of course) overrules the unconstitutional acts.

However, this presumes that the US S CT is the ultimate watchdog against tyranny and is actually going to make a determination of the issue of federal encroachments upon state sovereignty. As has been seen over the past many generations, the US S CT has done anything but limit Congress’ supposed plenary power from the retained powers of the states. The influence and preservation of state sovereignty has diminished to the point of being merely a “truism” by the US S CT. Was this the effect our ratifiers wanted?

Even if the US S CT ruled that Congress’ power to do this or that encroached upon state sovereignty, what power does this give to the States? It gives no power at all. It has no force or compulsion attached. Only executives can carry out laws. Moreover, the federal ruling only confirms what power existed in the first place. Again, this grants no power. Power comes directly from its source: the people of that body-politic. This is why a court’s ruling is called an “opinion.” Alexander Hamilton confirms that the federal judiciary has no power to enforce anything, and as such, is not to be feared by the other political branches of government:

“[That the federal judiciary is not likely to encroach upon another’s powers] may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force.” Alexander Hamilton, FP 81 (emphasis added).

Hamilton makes the observation that the courts are limited to their nature, objects, manner of exercise and their weakness, all of which confirm that their rulings do not involve the political powers of the other two branches, which are completely independent of the court. This concludes as well that their objects do not include the powers of the state sovereigns, which are completely separate from the court.

To suggest otherwise is to argue that the power to hold back federal encroachments upon the states is given to the President alone, as the court has no power to enforce its own judgments. So, are we to presuppose that the constitution left the defense of the “hens” (states) to the “foxes” (federal government)? This makes no sense. Again, why would the states have insisted on their right to protect the “security of a free state” (in the second amendment) if their defense rested within the federal government, viz a viz, the military? The states were more leery of the military than the courts.

Even assuming that the US S CT attempted to maintain the lines of sovereignty, this does not address cases where it is not possible to make specific accusations against the federal government’s encroachments. Are individual states left to suffer until three fourths of the states amend the constitution? This is nonsense. The states can do what our founders did in the declaration of independence, using their inductive and deductive reasoning regarding the federal government’s intent “to reduce [us] under absolute despotism.” This is the natural right of every body-politic.

This inability to make specific accusations for cases at law or equity is all the more reason why individual states must hold the federal government to their limitations. Think of it: what incentive do individual states have to protect freedom within their borders where the responsibility to do so is left in the hands of the US S CT? Moreover, what incentive does the federal government have to stay within their limits where there is no practical check upon their power other than the slow-wheel of mis-constructed court decisions, if that? This does not comport to a federal system whatsoever. It does not even comport to the English system of politics under which the colonies suffered. Without the practical use of states to enforce the compact individually, as they are required to do through their oath to support the supreme law of the land, the federal government has very little limitation. What genius is there in that system?

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Unfortunately, for too many years, the states have (to their detriment) attempted to use this “only” manner of recourse through federal courts, virtually ignoring their inherent and retained powers as a sovereign state. “Business as usual” is great for tyrants, but horrible for freedom. The states have ignored the political maxim admitted by Alexander Hamilton that “every government ought to possess the means of executing its own provisions by its own authority.” FP 80. Perhaps there was a time for the use of the courts as the most peaceful means of redress available. But at some point, prudence demands more than begging for justice at the foot of the king and his agents. For part eight click below.

Click here for part -----> 1, 2, 3, 4, 5, 6, 7, 8, 9,

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Related Article:

1- A Dissenting Opinion on "Secession"

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Timothy Baldwin is an attorney from Pensacola, FL, who received his bachelor of arts degree at the University of West Florida and who graduated from Cumberland School of Law at Samford University in Birmingham, AL. After having received his Juris Doctorate degree from Cumberland School of Law, Baldwin became a Felony Prosecutor in the 1st District of Florida. In 2006, he started his own law practice, where he created specialized legal services entirely for property management companies.

Like his father, Chuck Baldwin, Timothy Baldwin is an astute writer of cutting-edge political articles, which he posts on his website, Baldwin is also the author of the soon-to-be-released book entitled, Freedom For A Change, in which Baldwin expounds the fundamental principles of freedom believed by America’s forefathers and gives inspiring and intelligent application of those principles to our current political and cultural standing.

Baldwin is involved in important state sovereignty movement issues, including being co-counsel in the federal litigation in Montana involving the Firearms Freedom Act, the likes of which is undoubtedly a pivotal and essential ingredient to restoring freedom and federalism in the states of America. Baldwin is also a member of freedom organizations, such as The Oath-Keepers, and believes that the times require all freedom-loving Americans to educate, invigorate and activate the principles of freedom within the States of America for ourselves and our posterity.

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It is impossible for human language to exactly draw that boundary line with mathematical precision. That is all the more reason why the constitution did not put the ultimate question of “where is the line” in one branch of the federal government, unelected by the people, appointed and impeached by the other branches of the federal government.








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