Editor’s note: This is timely, in light of the Vinson judicial decision today. James Williamson, who is one of my younger brothers, is an Ohio native who currently lives in Nevada. Among his guest blogs that have appeared at Buckeye RINO are 3 others with “imminent rebellion” included in the title (Imminent Rebellion: States vs the Federal Government; Imminent Rebellion: The Tar Pit; & Imminent Rebellion: The New Fort Sumter). All of these “imminent rebellion” articles explore the friction between the Federal government and the state governments, a conflict which James believes will quickly escalate.
IMMINENT REBELLION: NULLIFICATION, SECESSION, AND THE CONSTITUTION
Not long ago I noted that discontent was growing among the states toward the federal government. At first I thought immigration would be the main dividing issue but now I think there is more than one lightning rod issue driving the wedges. Recently I have been reading in the news that nullification is resurging in response to “Obamacare.” Apparently this is now being seriously debated in the Idaho legislature with several other states watching closely. And if you think I’m a little crazy I now have company. Representative Jim Moran from Virginia is now making the same observation… (Don’t think because we seemingly share a first name and agree on one point that I’m giving this guy any credibility. I think he is dead wrong on his race comments.)
Since this seems to be a budding phenomenon in our country, let’s look at the ideas of nullification and secession for a minute. I could write a book and include a lot of history on this topic, but I don’t think it is necessary. In fact, I don’t think you need to look any further than the Declaration of Independence and the Constitution to come to a conclusion. Consider the following extract from Article VI:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
This sentence (in my mind) clearly precludes nullification (with one exception). To paraphrase, laws or treaties made under the Authority of the United States supersede anything written in any state constitution or law. In short, when you join the union you accept the constitution in its totality along with the entities that it creates; executive, legislative, and judicial. You can’t have your cake and eat it too. A state can’t cherry pick the laws they will allow and which ones they won’t in their state. That would create chaos and render the federal government useless. The only exception I would make are laws, orders, decisions, etc. that clearly conflict with the constitution itself. If that is the case then it isn’t really a law; it’s a statutory blunder. In the case of “Obamacare” the mandatory purchase of health insurance is a prime example. In such cases, states are perfectly justified in ignoring the provisions of the law that aren’t really law… At least one federal judge agrees with me on this one (Hudson in Federal District Court in Virginia and now Vinson in Federal District Court in Florida . . . article from New York Times here).
So if nullification isn’t legitimate (excepting cases of unconstitutional legislation) then what about secession? Is that also forbidden by the constitution? It is a topic that is not addressed by the nation’s founders in the Constitution itself. Presumably they didn’t really think any state would want to leave once it entered the union, otherwise they may have addressed it. Let’s start with Section 3 of Article IV:
New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
Note the difference between territory controlled by states and territory not controlled by states. Congress has the power to dispose of territory that doesn’t belong to a state on its own but they can’t dispose or alter the jurisdiction of any territory controlled by a state without their consent. If the federal government is superior to the state governments then why are there restrictions on its power? Why couldn’t the federal government decide to combine Vermont, Maine, and New Hampshire at their own discretion if it is superior to the state governments? It would be more efficient and reduce operating costs of Congress and of the executive branch. The new state wouldn’t even be among the top 25 in population or area.
The answer is simply that the Federal government is not superior. The United States of America is just what its name says it is: sovereign states that are united and are located in America. Any state that agrees to join the union needs to play by the same rules as the other states in order to maintain a union but they don’t give up their sovereignty. Much like a labor union that governs the workplace but not the individuals that belong to it, the United States government governs collective actions like trade and war, but not individual actions of the states.
Many point out that the states created the Federal government and not the other way around. Not only is this true but the states did not abdicate their sovereignty when they did it. This is very apparent in the 10th Amendment.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
So you English experts out there, what is the antecedent to delegated? Who is delegating powers to the United States? Could it be? NO!!!! It can’t be!!!!! NOT…… THE STATES!!!!!!!!!!!! Say it isn’t so!
Yes it is so. Do you hear that Senators and Congressmen? Do you hear that Mr. President? Your authority is delegated to you by the states!
Taking this one step further, the states are delegated their authority by the people. That is what is unique about our nation and that is what has made it so special. The people, the general public, everyone that can be called a citizen is a sovereign. Sovereignty is held by the people not by the government. All government authority is delegated and derived from the people to the states and from the states to the United States.
So if the states are sovereign can they secede from the union? Well, if an individual leaves the country and renounces their US citizenship do they not in effect secede as an individual by leaving the jurisdiction of the United States and refusing to be governed by it? Is it not the same with the states? States can’t cherry pick the Federal laws, but they can accept or reject the union altogether. Just as they voluntarily join the union they can also leave. They cannot be compelled one way or the other. Consider the opening sentence of the Declaration of Independence.
When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
So Thomas Jefferson and the signers of the Declaration all believed that there are legitimate reasons for dissolving political bands. Furthermore they believed that sovereignty (separate and equal station) was given to them by God! Now that’s radical thought for you. It must make all the elites in Washington tremble to hear such words. Perhaps that is why they have never read these documents publicly in congress until this January…
By now anyone who knows anything about history is probably thinking, “OK, smarty pants. What about the Civil War. Why did the North prosecute the war and compel the states to return to the union then?” That is simple. The United States was attacked, specifically at Fort Sumter. That was an overt act of war. President Lincoln and Congress were generous enough to recognize their prior status as states following the war rather than making them start over. They didn’t have to do that. Just like we didn’t have to give Germany and Japan their sovereignty following World War II. We did it because we recognized that people must have liberty to govern themselves if they are to be happy and we are to have lasting peace.
In conclusion, since the Federal government derives its authority from the states that actually makes the states (collectively) superior to the Federal government. Without them there would be no federal government. But without the Federal government we would still have state governments. The federal system is dependent on the states, not the other way around. As such, the states absolutely have the right to secede.
Oh, and Mr. Reid, you tried to remind the Republicans that the constitution was formed out of compromise. May I point out that Amendment X was a part of the compromise between the Federalists and the Anti-Federalists, two opposing parties with opposite ideals. Compromising within your own party and making back door deals with industry is hardly in the same league….
February 3, 2011 at 1:22 am
Interestingly enough the lawsuit in Florida has 26 states as plaintiffs. That’s a majority. Whenever you have a majority of the states sufficiently fired up to take the law to court you have to ask yourself: what was congress and the white house thinking? The house seems to have come to their senses but the Senate apparently still has their heads stuck in the sand. We’d expect that of the White House but hoped that the Senate would at least reconsider for a moment what they have done…
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