Secession: Does a State Have a Right to Secede From the Union? Part III | Eastern North Carolina Now

    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. A fundamental right (as it is, and it was listed in the Declaration) is "unalienable," which means it can never be permanently divested from the sovereign. Our rights to Life, Liberty, and Property are unalienable. We can never lose them. Because these rights come from our Creator (Nature's God), they precede government and hence government can never take them away. The right of secession ("abolishing" government) is also a fundamental right. Jefferson listed it side-by-side with the rights of Life, Liberty, and the Pursuit of Happiness.

    The Civil War 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. 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. The Constitution is SILENT on the matter of secession. 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. The creators never have to get permission from their creation. It just isn't logical, or legal under the compact theory. 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 !!

    QUESTION: Does the Supreme Court have the authority to make a decision about whether a state may secede or not, especially in deciding that it doesn't?

    -> In Marbur y v. Madison, Chief Justice Marshall articulated the concept of judicial review, writing that federal courts must hold the Executive and Legislative branches to their Constitutional limits. He also wrote that Justices and judges are bound by their oaths. They are bound by the "particular phraseology" and meaning of the Constitution in their analyses.
    -> Marbury would support the notion of a strict reading of the Constitution (which is silent on the issue of secession). As James Madison explained: "Every word of the Constitution decides a question between power and liberty."

    QUESTION: What do you say to those who believe that states must ask the government for permission to leave the Union or take their chances with the federal court system? (which is the most popular, and incorrect, assumption)?

    The Declaration of Independence reads: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

    The Declaration announces that it is the right of the people to abolish their government. It doesn't say that they People must first clear it with a court of competent jurisdiction. The right is an inherent one, just as the rights of Life, Liberty, and Property are. "God who gave us life gave us liberty" and therefore, liberty is indivisible from life itself. I look back at our founding, and great men like Thomas Jefferson, James Madison, and John Adams embraced a concept known as 'ordered liberty' which was reflected in our founding documents and is the basis for our republic. Ordered liberty stems from "Natural Law" which acknowledges that that there is a natural order to the universe: Creator - Universe - People - Governments. There is a Creator who created the universe and then created people. People, in turn, form into communities, and in order to keep their communities ordered, they establish local governments. Finally, local governments give rise to central governments. Natural law is what spontaneously arises when there is no government, because of "who we are" and who created us. Individuals precede law.

    Because of this "natural order," man has (and should have) a relationship with his Creator. At the very least, it should be one of respect. John Locke, Thomas Hobbes, and Montesqieu and others applied this concept to government. In an ordered society, first you have man as an individual. Only when individuals come together to live in a society is there a need for government. So individuals, with sovereign/ inherent liberty rights, precede government. Therefore, since individuals are the ones who agree to be governed and how to be governed - because after all, it is for their mutual benefit and must serve their interests - the purpose of government, first and foremost, is to protect individual rights (particularly those of Life, Liberty, and Property, and all those rights and liberties associated with them). Individuals have the right to defend themselves and their property. True law derives from this right, not from the arbitrary power of a government.

    Governments are created by compact - an inherent agreement by the people to obey laws in return for the protection of their rights and the service of their liberty interests. Many governments are evidenced by a constitution, although it isn't necessary, although a written instrument sets out in particular detail the relationship between itself and the People .. that is, the bounds of its authority. Governments therefore are supposed to be limited. While some laws are necessary to promote and even enlarge individual liberty, too many laws burden liberty and oppress people. The balance shifts. Instead of protecting and serving the People, it becomes their master. And then that is when we get to the point where the People review the situation and decide whether it is appropriate to form a different compact, or as Thomas Jefferson so eloquently stated: "to institute a new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

    I certainly don't advocate secession. We lost almost 620,000 young men when the South seceded from the Union and Lincoln fought to deny them that opportunity. But it has to be an option as a matter of last resort otherwise we slide down the path to tyranny without a way to salvage the liberty that our Founders secured in way that only a limited government can assure.

    Our country was founded on the liberty right of self-determination and the notion that it is a free people who determine the proper size and scope of government. The People, in fact, made that decision back in 1787-88 when they selected members to their state conventions to ratify the Constitution (a compact) which created their government.

    Why would a state file a lawsuit against the government, in federal court - a branch of that very government ? Can they truly that court to be a fair and neutral umpire in assessing the right of a state to sever its ties with the federal government? The States have essentially been down that road and the Supreme Court has said that the compact can't be dissolved.

    Furthermore, why would a state file a lawsuit in federal court when it is well-known that its judges and justices alter and interpret the Constitution willy nilly and often in contradiction to the words, warnings, and intention of our Founding Fathers and the intention of the states as they often made abundantly clear in their ratification conventions when they ratified the Constitution. Why would the states take their chances with federal judges who would easily misconstrue the terms of the contract (which they view as a "Living Document"). It is a mindset that clearly serves the federal government's purposes best.. In fact, it serves the federal government's purposes exclusively and in almost all cases, it is does so at the expense of the States.

    The purpose of secession is not to harm the nation or endanger the Union, but rather to preserve liberty and the historic experiment that our Founders began when they wrote the Declaration of Independence and US Constitution. Secession is the rightful remedy to preserve the principles and values upon which our country was founded and embodied in the American Revolution. The principle underlying secession is that of social compact. That is the principle which underlies government - the understanding of how people agree to be governed and agree to abide by laws. People always precede government. It's only when people group together in a community that government is needed to serve common interests and "protect. and enlarge" individual liberty. After all, what is an individual's liberty in life and property worth if he can't leave his home and land in order to work and travel because he must protect his family and property from evil-intentioned individuals? Hence, that's the role of government. A social compact is like a contract. Constitutions are the instruments to memorialize the intentions of people with respect to their government. Constitutions protect the individual. Just like contracts protect those who enter into them and sign them. The Constitution is an agreement (contract), signed by the States on behalf of the People. What it meant in 1787 is what it is supposed to mean today. That's the WHOLE PURPOSE of a written Constitution (otherwise, repeal it and start over again, or amend it legally) Can you imagine a reasonable person entering into an agreement of significant consequence without knowing how that agreement will be changed or interpreted in the future? Would you like the contract to the purchase of your home to be re-interpreted and provisions changed at will during the life of that contract? And especially by the party that has more power than you? No reasonable party would ever enter into such an agreement - especially with such enormous consequences as the States did in 1787-88.

    It is said that nations typically follow a predictable path of progression: From bondage to spiritual faith; then from spiritual faith to great courage; then from courage to liberty; then from liberty to abundance; then from abundance to complacency; then from complacency to apathy; then from apathy to dependence; and finally, from dependence back into bondage. We are at the "dependency" stage. We think the federal government - all branches - are the answer. We assume they are the final arbiters of what the Constitution means, what government should be, what government should do, and what laws the people MUST obey. (A perfect example is the desire of Justices Ruth Bader Ginsberg, Sonia Sotomayor, and Elena Kagan to have a second amendment case reach the Supreme Court again after another liberal justice has been appointed to the Supreme Court so they can "get it right this time." District of Columbia v. Heller was a narrow 5-4 decision. These liberal justices believe strongly in government gun control - despite the overwhelming authority to the contrary - and Ginsberg has already gone public urging another case to come before the high court "after Obama wins a second term.")

    QUESTION: Is it true that both California and Texas have such a right in the agreements they signed to join the Union?

    -> I have read that this is not true. There are no direct provisions. However, in both the original (1836) and the current (1876) Texas Constitutions, Article I states that "All political power is inherent in the people ... they have at all times the inalienable right to alter their government in such manner as they might think proper."


    References:

    1). Wickard v. Filburn, 317 U.S. 111 (1942)
    2). Texas v. White, 74 U.S. 700 (1869). Referenced at: http://www.usconstitution.net/constfaq_a4.html ]
    3). US Constitution Online. http://www.usconstitution.net/constfaq_a4.html
    4). Chuck Braman, "The Political Philosophy of John Locke and Its Influence on the Founding Fathers and the Political Documents They Created," 1996.

    Referenced at: http://www.chuckbraman.com/Writing/WritingFilesPhilosophy/locke.htm]

    5). William Rawle, A View of the Constitution of the United States. Philadelphia: H.C. Carey and I. Lea, 1825.]
    6). "Texas Secession Facts," Texas Secede!. Referenced at: http://www.texassecede.com/faq.htm
    7). Thomas Paine, "The Truth About Secession," NoCompromiseMedia , June 25, 2009. Referenced at: http://nocompromisemedia.com/2009/06/25/the-truth-about-secession/ ]
    8). "Wickard v. Filburn," Common Sense Americanism. Referenced at: http://www.csamerican.com/sc.asp?r=317+U.S.+111
    9). "Wickard v. Filburn - Supreme Court Extends Commerce Power To Production." Referenced at: http://law.jrank.org/pages/13433/Wickard-v-Filburn.html
    10). http://www.constitution.org/primarysources/primarysources.html (Primary Sources)
    11). Federal Directory of Departments and Agencies: http://www.usa.gov/directory/federal/index.shtml
    12). "Lincoln on Secession," The Real Abraham Lincoln. Referenced at: http://pointsouth.com/lincoln/secession.htm
    13). James Ostrowski, "Was the Union Army's Invasion of the Southern States a Lawful Act?," Secession, State, and Liberty, New Brunswick, N.J.: Transaction Publishers, 1998). Referenced at: http://www.lewrockwell.com/ostrowski/ostrowski31.html]
    14). Senator Russell Pearce, "9th Circuit Court of Appeals' SB 1070 Decision Demonstrates Contempt for Constitution," Intellectual Conservative, April 16, 2011. Referenced at: http://www.intellectualconservative.com/2011/04/16/9th-circuit-court-of-appeals-sb-1070-decision-demonstrates-contempt-for-constitution/
    15). James Simpson, "Breaking - Power to the People! Repeal Amendment Gaining Strength," Emerging Corruption, November 27, 2010. Referenced at: http://emergingcorruption.com/2010/11/breaking-power-to-the-people-repeal-amendment-gaining-strength/
    16). "Is, as Lincoln Said, The Union Perpetual?", Secession University. Referenced at: http://secessionu.wordpress.com/is-the-union-perpetual/
    17). Schecter Poultry Corp. v. United States, 295 U.S. 495 (1935). See Cornell University Law School. Referenced at: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0295_0495_ZS.html.
    18). Currin v. Wallce, 306 U.S. 1 (1939).
    19). Thomas Woods, The Politically Incorrect Guide to American History, 2004, Regnery Publishing, Washington DC.
    20). Marco Rubio, Speech at the Ronald Reagan Library, Aug. 24, 2011.
    21). Ex parte Milligan, 71 U.S. 71 (1866).
    22). Ronald Reagan, "A Time fod Choosing." Referenced at: http://www.reagan.utexas.edu/archives/reference/timechoosing.html
    23). Jim Ostrowski, "Secession." Referenced at: http://jimostrowski.com/articles/secession.html
    24). "Middlebury Institute/Zogby Poll: One in Five Americans Believe States Have the Right to Secede," Zogby International, July 23, 2008.
    25). Thomas J. DiLorenzo, "The Men Who Destroyed the Constitution," Lew Rockwell.

Referenced at: http://www.lewrockwell.com/dilorenzo/dilorenzo105.html

    26). Gene Healy, "The Squalid 14th Amendment," Lew Rockwell. Referenced at: http://www.lewrockwell.com/orig/healy1.html
    27). Andrew Napolitano, The Constitution in Exile, Thomas Nelson Publishing (April 18, 2006).
    28). David Martosko, "Petitions Seeking White House Approval to 'Secede' Now Come From 47 States," Daily Caller, November 13, 2012. Referenced at: http://dailycaller.com/2012/11/13/petitions-seeking-white-house-approval-to-secede-now-come-from-47-states/
    29). "How Many States Want to Secede from the US?," WND, November 12, 2012. Referenced at: http://www.wnd.com/2012/11/now-many-states-want-to-secede-from-u-s/
    30). White House Petitions - https://petitions.whitehouse.gov/
    31). Diane Rufino, "We Need to Repeal the 17th Amendment and Get More States to Adopt State Sovereignty Resolutions!," NCRenegade, July 26, 2012. Referenced at: http://ncrenegade.com/editorial/we-also-need-to-repeal-the-17th-amendment-and-get-more-states-to-adopt-state-sovereignty-resolutions/
    32). Mytheos Holt, "There is No Right to Secede: See the Alleged Letter Where Justice Scalia Shoots Down Idea of Leaving the Union,"The Blaze, November 13, 2012. Referenced at: http://www.theblaze.com/stories/there-is-no-right-to-secede-see-the-letter-where-justice-scalia-shoots-down-idea-of-leaving-the-union/
    33). "Secession (and This Blog) are Back in the News," New York Personal Injury Law Blog. Referenced at: http://www.newyorkpersonalinjuryattorneyblog.com/2012/11/secession-and-this-blog-are-back-in-the-news.html
    34). Tim Brown, "Secession Movement Sweeps All 50 States," Freedom Outpost, November 13, 2012. Referenced at: http://freedomoutpost.com/2012/11/secession-movement-sweeps-all-50-states/ [All Petitions Available by Links off this site]
    35). Ron Paul video on the Right of Secession. http://nesaranews.blogspot.com/2012/11/all-50-states-file-secession-petitions.html
    36). Diane Rufino, "What is the Significance of the Constitution and Can Nullification Save It?", January 25, 2012. Referenced at: http://forloveofgodandcountry.wordpress.com
    37). Diane Rufino, "Nullification: A Concept Whose Time Has Come," June 23, 2012. Referenced at: http://forloveofgodandcountry.wordpress.com
    38). Diane Rufino, "Nullification and The NDAA," May 31, 2012. Referenced at: http://forloveofgodandcountry.wordpress.com
    39). Diane Rufino, "Nullify Now!," July 13, 2012. Referenced at: http://forloveofgodandcountry.wordpress.com
    40). Diane Rufino, "Nullification and the Myths," August 31, 2012. Referenced at: http://forloveofgodandcountry.wordpress.com

    Publisher's note: Diane Rufino has her own blog, For Love of God and Country. Come and visit her. She'd love your company.