A Dissenting Opinion on Secession Part II

February 11, 2010

PART 2 of 3

By Dr. Edwin Vieira, Jr., Ph.D., J.D.

(Editor’s Note: To be truly informed, one needs to know both sides of an argument.)

What must draw into question the constitutional acumen or good faith of many “secessionists” is their refusal to admit that “secession” is even possible through amendment of the Constitution—and that, all things considered, this route, besides being legally unassailable, is politically the fairest and most open, because it involves all of the States (and through them WE THE PEOPLE in their entirety) in the ultimate determination, after a full national debate on the subject.

2. To be sure, if one simply disregards the actual language of the Constitution and the rules for its interpretation, it is possible to conjure up all sorts of legalistic theories in support of “secession” outside of Article V. Assume that some such theory—call it “Theory X”—were put forward by “secessionists” in (say) South Carolina. Presumably, “Unionists” in other States, sufficient in number to preclude an amendment of the Constitution that allowed South Carolina to “secede” perforce of Article V, would deny the validity of Theory X. (If no such denial occurred, then South Carolina could “secede” pursuant to Article V; and the validity vel non of Theory X would be rendered moot.) Well, who should decide this dispute over Theory X? South Carolina alone? The “Unionist” States alone? As one might expect, the Constitution provides the answer.

The conflict between South Carolina and her partisans in “secession”, on the one side, and the “Unionist” States, on the other, would form or frame what the Constitution calls a “Case[ ] * * * arising under th[e] Constitution” and a “Controvers[y] between two or more States”. Now, not only shall “[t]he judicial Power [of the United States] * * * extend” to such a constitutional “Case[ ] or “Controvers[y]”, but also “[i]n all Cases * * * in which a State shall be Party, the supreme Court [of the United States] shall have original Jurisdiction”. Article III, Section 2, Clauses 1 and 2. So, for proper determination, the question of “secession” under Theory X would have to be, perforce of the Constitution itself, submitted directly to the Supreme Court in its “original Jurisdiction”. Surely, if the Constitution is a “contract” among the States, then the States themselves have thus designated the Supreme Court as their common judge in such disputes, and therefore pursuant to their own agreement should submit this issue to the Court.
South Carolina might file its claim alone, naming all of the other States as defendants; or it might agree to join certain States with her as co-plaintiffs against all of the others; or after the litigation commenced some of the States named as defendants might realign themselves as plaintiffs, or vice versa—but, in any event, the question would be presented in a proper “Case” or “Controversy” in the proper forum. And all of the States joined as parties would be bound by the decision the Supreme Court finally rendered, if that the opinion were free from fraud or manifest error.

Over the years, the Supreme Court has heard numerous “Cases” and “Controversies” in which one or more of the States were parties, even on both sides—perhaps the most famous of them being the early decision in Rhode Island v. Massachusetts, 37 U.S. (12 Peters) 657 (1838). So no plausible argument exists that such a “secession” “Case” as is posited here is not possible in principle. If proponents of “secession” who claim that some Theory X supports their position were scrupulous constitutionalists, they would at least attempt to take advantage of the means the Constitution provides to prove their assertions. To be sure, the Supreme Court has sometimes stumbled in the exercise of its “original Jurisdiction”, opining (for example) that such jurisdiction is not obligatory on it and will be exercised only sparingly. See, e.g., Illinois v. City of Milwaukee, 406 U.S. 91, 93-94 (1972); and Utah v. United States, 394 U.S. 89, 95 (1968). But it is also true that the Court considers itself, not Congress, the final arbiter of how it will exercise its “original Jurisdiction”. See, e.g., Kentucky v. Dennison, 65 U.S. (24 Howard) 66, 98 (1861). So the Court could not be precluded from hearing such a “Controvers[y]”. It beggars belief that the Supreme Court would dare to refuse to hear a “Controvers[y]” on such a fundamental constitutional question as “secession” if some significant number of States presented it. (Actually, one would suspect that the Justices would not even consider ducking the issue, because the easy and surely correct answer is that the proper means for “secession” is to be found in Article V.)

3. Some proponents of “secession” contend, however, that States intent on “seceding” need not seek a constitutional amendment, or litigate the issue before the Supreme Court, because the General Government has serially and seriously violated the constitutional “contract”, thereby relieving the States of any further duty to abide by it themselves. And, true enough, under general principles of law, a material breach or nonperformance of a “contract” by one party may entitle an innocent party to that “contract” to refuse to perform the obligations the agreement imposes upon him. Nonetheless, the “secessionists’” contention assumes what must first be proven—namely, that the Constitution is a “contract” between the States and the General Government—when, in fact, rather than “contracting” with the General Government, WE THE PEOPLE created it out of nothing, and empowered it in certain particulars, while simultaneously prohibiting the States from exercising certain powers they had theretofore enjoyed. See U.S. Const. preamble and Article I, Section 10. Even, however, if the Constitution were such a “contract” as “secessionists” assume it to be, and even if rogue public officials of the General Government have repeatedly violated or refused to enforce it, such wrongdoing could not be imputed to the General Government itself.

After all, the General Government is not a thing, but a set of relationships between (i) the actions of various individuals who happen to hold public office from time to time and (ii) the legal standards set by the Constitution and those laws made in pursuance of it. When those individuals obey the Constitution and laws, their actions constitute acts of government. But when they violate the Constitution and laws, their actions constitute simply their own private lawlessness. As soon as a public official moves even one Angstrom Unit beyond constitutional limits, he ceases to act as a public official; as soon as he ceases to act as a public official, his acts cease to be governmental in character; and as soon as his acts cease to be governmental in character, they cannot be imputed to the General Government. See, e.g., Ex parte Young, 209 U.S. 123, 158-160 (1908). For that reason, the General Government itself can never abridge anyone’s constitutional rights, not only because the General Government lacks any authority whatsoever to exceed the boundaries the Constitution sets to its actions, but also because the General Government can not and does not even exist outside of those boundaries.

Now, most proponents of “secession” concede that the vast majority, if not all, of the really consequential wrongdoing that emanates from Washington, D.C., consists of unconstitutional, not simply negligent or just plain stupid behavior by various rogue public officials. If so, the whole mess amounts merely to a mass of private misbehavior on the part of usurpers and aspiring tyrants, not even arguably legitimate acts of government at all. And, as such, it should be punished severely by the General Government under such statutes as Title 18, United States Code, Sections 241 and 242, rather than being imputed to that government. So, even were the Constitution somehow a “contract” between the States and the General Government, the General Government has never “breached” that “contract”, because the General Government has no ability to “breach” it. For once some rogue public official transgresses a constitutional standard sufficiently far to “breach” the “contract” in fact, his action—as the inexorable result of that very transgression—is no longer “governmental” in character as a matter of law.

It is bootless for “secessionists” to complain that many, if not most, rogue public officials in the General Government get away with violating the Constitution because other rogue public officials—such as investigators, prosecutors, and judges—intentionally look the other way. For that fact, if true (as presumably it is), merely enlarges the list of private malefactors; it does not in any manner change the private nature of their wrongdoing. Perhaps even the entire General Government might be populated with rogue officials who did nothing but violate the Constitution every last minute of their working days. In that case, though, rather than being transformed into a criminal enterprise, the General Government would for all intents and purposes simply be in abeyance.

On the other hand, if “secessionists” were to concede that these public officials are not rogues at all, and that their actions are actually constitutional, but that “secessionists” disapprove of those actions merely on policy grounds, then would not “secessionists’” proper remedy be to propose one or more statutes, or even amendments to the Constitution, in order to impose new limits on those officials’ powers? And until “secessionists” had at least attempted, in good faith and with sufficient efforts and expenditures of time and treasure, to secure such statutes or amendments, and failed through no fault of their own, how could they be justified in calling for the radical remedy of “secession”?

B. Proponents of “secession” run afoul, not only of these niceties of constitutional law, but also of certain critical practical difficulties that render their project less than likely to succeed. For if a State intends to “secede” from the Union, she must be prepared to defend herself as an independent entity economically, politically, and in every other relevant way, when the General Government and the States still adhering to the Constitution refuse, as surely they will, to recognize the legitimacy of her “secession”—which means at least from the very first moment at which her “secession” takes effect.

1. The most obvious of these difficulties is that, unlike the circumstances in which the Confederate States of the 1860s operated (and unsuccessfully at that), modern “secessionist” States would not necessarily have either territorial proximity or even locations that favored, rather than hindered, their existences as independent mini-nations. For example, imagine that (say) South Carolina, Oklahoma, and Wyoming “seceded”. Even if the three of them immediately formed their own new “Confederate States” as a single legal entity, they would not enjoy geographical propinquity let alone unity. And although South Carolina would have an outlet to the sea and therefore possibly easy access to international trade and other assistance, Oklahoma and Wyoming would be landlocked within, and therefore could easily be blockaded by, the United States at least as to all road and rail traffic that ran across those States’ borders. Inasmuch as Oklahoma and Wyoming are not self-sufficient in all of the necessities of life, the best for which their citizens could then hope would be to organize a modern-day “Berlin Airlift”to sustain them. The highly problematical nature of such a venture is self-evident.

2. Even if such practical geographical problems can be disregarded, in order to “secede” effectively a State must exercise full control over at least the two great powers of government—the Power of the Purse and the Power of the Sword—and that, long before “secession” occurs. Indeed, control over those two powers is the absolutely necessary precondition for even the possibility of successful “secession”.

a. Ultimately, a State cannot “secede” in economic practice from the United States unless she also “secedes” from the Federal Reserve System. If the “seceding” State and her citizens supinely continued to employ Federal Reserve Notes as their currency, they would remain under the malign financial influence, if not the control, of the Federal Reserve System, the United States Department of the Treasury, Congress, and the big financial string-pullers, manipulators, and speculators in New York City. Thus, effective exercise of the Power of the Purse will necessitate any “seceding” State’s adoption of a new currency capable of replacing the Federal Reserve Note, not just in her own financial and other monetary transactions of a governmental nature, but within her entire private economy. For, in a complex political economy run on free-market lines, prices of all goods and services, whether public or private, have to be denominated in some monetary unit; and for efficient operation of that economy (what economists call “rational economic calculation”), that monetary unit must be economically sound.

Copyright 20010 Edwin Vieira.