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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

Protecting A Free State

It is curious to argue that the States are not sovereign, independent states (which is in fact the conclusion for anyone who argues that the States are bound to the US S CT decisions regarding their sovereignty and their right to secede) when the US Constitution guarantees the right of the people to keep and bear arms, the purpose being to secure a FREE STATE: “A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” Vieira even has a two volume series on the power of the states to defend their borders against unlawful invasion (which is excellent by the way). If the states did not retain the sovereignty to protect itself from invasion of enemies both foreign and domestic, how could they be left with the right of military action within their state regarding internal protection?

The second amendment (as well as the Constitution of the Confederate States of America) acknowledges that the states in the union are free; and to remain free, they must have the capacity and capability of defending themselves even from the federal government, as Alexander Hamilton explains in the Federalist Paper 26: “dangers [from the federal government] so formidable can[not] assail the whole Union...if we take into our view the aid to be derived from the militia.”

Any studier of America’s history during that time knows that the states did not want the federal government to have a standing army for fear that the federal government would usurp the states’ powers through force. Thus, the states retained the means to defend themselves--the natural right of every person and body-politic. How much more often will the states be attacked through usurpations of federal law and judgments? Much more! Attacks are not always violent in nature, but can go to the very principles that ensure freedom in the first place. Are the states to become slaves at the mere force of laws, when they reserved the right to defend their state against threats of force?

Yet, we are to somehow believe that those same states, which the Constitution acknowledges have a pre-existing right to protect themselves through use of force and militia action, must submit to unconstitutional laws upheld by the US S CT even though the states, through their agents, swore to uphold the Supreme Law of the Land to the contrary, as well as their sovereign powers under the Tenth Amendment--also the Supreme Law of the Land.

Conflict of Interest

That the states must wait for a US S CT decision in their favor is very interesting, for one very important reason: the US S CT is subject to the control only of Congress and of course appointed by the President. The only federal controls over the US S CT lie in the hands of the government competing against state sovereignty. That the states would be bound to the rule of this federally-controlled body of unelected men contradicts the very the purpose of a judiciary, which is for a conflict-free, unbiased resolution of an issue at law or equity. Yet, as Alexander Hamilton says in Federalist Paper 81 regarding the fear that the US S CT will not uphold federal laws that are in fact constitutional,

“[T]he inference [that the federal judiciary will not overrule constitutional laws] is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security.

“There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments.” (emphasis added)


Ok, so Congress is protected from the likelihood that the US S CT will overrule its laws because of the threat of impeachment. Now what about the state sovereigns? What assurance and protections do they have to ensure that the US S CT will not rule unconstitutional what is actually constitutional? Is it three fourths of the states? What if three fourths of the states do not enforce the constitution either? Are the remaining one fourth of the states to comply unconstitutional laws perpetually? I guess if you are content with you and your posterity living in slavery, this is fine. If the US S CT is in truth to be the state’s protection against federal tyranny, our founders did a sloppy job at building the wall of separation between state and federal.

General Limitation of Federal Judiciary

Undoubtedly the states could not have been so naïve as to put such a critical power of self-preservation into the hands of a few men who are appointed for life by the President, who are a part of the government competing against the states, and whose duration and position was subject to the impeachment of Congress? If they were so short-sided and mal-perceptive, perhaps the entire system itself could be called into question, as well as the founders’ intent and their choice of words.

The truth is, the federal supreme court was not given the power to protect or destroy the political sovereignty of the states, by virtue of the fact that no branch of the federal government has the power to destroy what the states ratified. Why else would the tenth amendment have been insisted upon if it could be destroyed by the US S CT? The right of protection was in the individual states.

Given that the extensions of power to all the branches of the federal government are identical to the same objects and their powers are identically limited not to interfere with state sovereignty, it would be very unlikely that the constitution meant to give power of the matter of state sovereignty to only one branch of the federal government, especially when it was clearly understood that government actions can only be taken “as far as that authority extends.” Samuel Pufendorf, Two Books on the Elements of Universal Jurisprudence, (Indianapolis, IN, Liberty Fund, 2009), 297; See Also, Alexander Hamilton, FP 27, “[T]he legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS.” (emphasis added for “courts”)

The only purpose of courts is to provide an unbiased forum in which parties to a dispute may have their matter fairly tried and decided. “No man ought certainly to be a judge of his own cause.” Alexander Hamilton, FP 80. A court has never been deemed the proper forum to decide matters of political sovereignty: Questions [which are] in their nature political…can never be made in [a] court.” Marbury v. Madison, 5 U.S. 137, 170 (1803) (emphasis added). So how can it be presupposed that the federal court possesses the unbiased qualification to determine the sovereignty of the state, where that court has a vested interest in the opposing party to the “case,” that is, the federal government? That is impossible and flawed.

Article 3’s Specific Limitation of Power

It has long been recognized that a courts’ power can no more extend to matters than what the corresponding legislature can reach. The state courts can reach matters to the extent of the state’s sovereignty and the federal courts can reach matters to the extent of Congress’ sovereignty. Thus, where Article 1, section 8 (the powers of Congress) do not concern determination of state sovereignty, the parties to the compact, the nature of the union and the powers of body-politic, the federal courts can have no jurisdiction over the same under Article 3. Alexander Hamilton reflects this maxim in Federalist Paper 80, stating:

“[T]he judiciary authority of the Union ought to extend…to all those which arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation.” (emphasis added).

To say that only the federal supreme can decide the power of the states to secede concludes that Congress has the same power to prevent a state to secede. Yet, we know that he logical deduction and proper construction are, where the federal laws are NOT passed pursuant to their just and constitutional powers of legislation, the federal courts do not have power to enforce them, viz a viz, the states have a right and the power to resist them, as Hamilton said in Federalist Paper 16. Truly, all articles of the constitution granting power to the federal government do not include the power to invade the powers reserved to the states under the tenth amendment.

What is more telling about Hamilton’s statements in that section is that he admits that the federal court has two possible powers regarding state laws that contradict the articles of the constitution: (1) a direct negative on the State laws, or (2) to overrule such as might be in manifest contravention of the articles of the union. To his own suggestion, he follows: “There is no third source that I can imagine. The latter (to overrule) appears to have been thought by the convention preferable to the former, and, I presume, will be most agreeable to the States.” FP 80 (emphasis added).

This provision is very telling, because Hamilton admits the difference between the federal court’s power to “negative” the state law altogether, without regard to state sovereignty (which was rejected at the convention) and the power to “overrule” those state laws that are “manifestly,” or put differently, “expressly,” “patently,” or “obviously” in contradiction to the articles of the union.

This limits the court’s power considerably, because it requires that the matter over which the court overrules the state law does not have a negative (or cancelling) effect; and it does not include those matters that are not manifest, or put differently, matters that are not expressed in writing and in definite words in the constitution. Finally, this admission evinces the fact that the States would be more “agreeable” to this type of court power, since it does not encroach upon their state sovereignty to resist those federal actions it determines unconstitutional.

Obviously, Hamilton had a blatant bias regarding the federal court’s ability to “negative” state laws. The constitution convention notes reveal that this same “negative” power was proposed to be placed in the federal judiciary (and legislature) by Pinckney, Madison and Hamilton, yet the convention rejected this power. Isn’t it funny how Hamilton ignores this fact in his paper, yet still suggests it has this “legitimate” court power? Same goes for Madison in Federalist Paper 39.

The states were not giving up their rights of state sovereignty; and were it not for that fact, they would have never ratified the US Constitution. For this similar reason, John Taylor raises the following point:

“[W]e must determine, whether the enumeration of federal judicial powers, is not a limitation and restriction like the enumeration of federal legislative powers. Congress is empowered to ‘make all laws necessary and proper for carrying into execution the powers vested by the constitution of the United States.’ The federal power is extended only ‘to all cases in law and equity arising under the constitution.’ The analogy between these expressions is considerable. Neither conveys a power to alter the terms of the compact between the states. Both must therefore have been intended as respectively prohibiting the federal legislative and judicial departments from effecting this end, either by laws or judgments.” John Taylor, New Views of the United States Constitution, 133 (emphasis added).

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The fact that Article 3 “extends” jurisdiction to the federal judiciary necessarily means that the states, through the US Constitution, limited the federal court’s jurisdiction. This means they do not have the power to rule on just any matter they deem “arising out of the constitution.” Rather, they are limited to “cases in law and equity” and “controversies,” though expressly not “all controversies.” As understood by our founders, this grant of power in no way granted them jurisdiction over the matter of state sovereignty, which is expressly reserved to the states themselves in the tenth amendment. For part nine 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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