Regarding Nullification, Inter-Position And Secession

From Liberty Defense League:

A Response to Bob Brown Regarding Nullification, Interposition and Secession


Tue, Dec 28, 2010

Secession, State Sovereignty, Timothy Baldwin

by Attorney Timothy Baldwin

(appx. 4,700 words)



For me, it is always disheartening to see men and women who have held, who hold or who wish to hold American political office possess political ideas dangerous to the fundamental liberties which America’s Declaration of Independence holds are inalienable. Yet, while disheartening as it is, it is also common. So, it is perhaps no surprise that Bob Brown, former Montana secretary of state and state Senate president, authored a recent article attacking the States’ political powers of nullification, interposition and secession. Unfortunately, it has largely been the opinion held by Brown that has enabled the ever-growing, tyrannical federal government to usurp the authority of the States and liberties of the people. Coming from people in such positions of political position and influence in such a great State as Montana, it is thus incumbent upon those of differing minds to express their dissidence, though admittedly it is impossible to engage every point in this forum.









This subject has been discussed for over two centuries in the United States in much more eloquent and detail terms than short articles can divulge. But as discussions go, theories do not put on flesh until circumstances require the people to begin using the theory to their advantage. Brown’s position is nothing new and offers no political truths on the subject. What’s more, he offers no support from the historical and political context of 1787 to enlighten the mind. At most, Brown attempts to use emotional tactics and a war, commonly known as the Civil War, to denigrate a political position that can only be answered by the foundational concepts and documents which formed the political association of the States from 1776 to 1789, and in more reality, by the people holding the political power themselves. Unfortunately, putting out such little-researched disinformation on such a serious topic of freedom only further enslaves the minds of what are supposed to be free people who should erudite for themselves.



This must be admitted if what Brown asserts is true concerning a “settling of the issue” by virtue of the federal government’s attacking through war the newly-formed political association, The Confederate States of America: the United States Constitution is not the supreme law of the land at all, but rather, conquest and sheer force are the supreme law of the land. Given Brown’s logic, so long as the federal government can force a state on an issue, the “issue is solved”. If this is so, then the consent of the governed does not exist in the States and neither does freedom. It is very disturbing to think that men and women holding top political offices in both the State and federal level actually hold freedom’s antithetical position.



Still, Brown’s explanation and support of his position offers absolutely no guidance for the true student of American political truth and makes incorrect blanket statements which prove the shallowness of his persuasion and only lead those who are unwilling to study the matter more seriously into false conclusions and ultimately enslaving political principles, thus translating into voting for people who hold these detrimental political beliefs—that is, assuming one believes in a federal form of government composed of sovereign states as America’s founders largely did.



I have written extensively on this subject before, (as have many others more articulate than myself), so one may read much of what I (and others) have already exposed regarding the true meaning, nature and character of the union of the sovereign states, known as the United States of America as formed from 1787 to 1789. Indeed, it is our duty as citizens of Montana (and other States) to do so. Consider this: it has been said before by historians that the United States is one of the only political institutions in history not to know what kind of political union it has (had). It is no wonder why there is so much conflict and confusion on the subject. But is this division and ignorance caused by willfulness, negligence or subterfuge? If we base our conclusions on articles such as the one Brown released, the answer could be any or all of the above.



The answer of what we are (to be) is not so far away, however. Even the Federalist Paper authors (advocates for the ratification of the United States Constitution) admitted the power, right and duty of the State governments to actively interpose and nullify unconstitutional federal actions. Yet, their positions are completely ignored as support for what union the U.S. Constitution created, which union was in fact of the same character and nature as the 1781 Articles of Confederation, as recognized by the Federalist authors themselves—it was not some wholly new form of constitutional government/union (as Brown states). Hamilton and Madison admitted,



“[T]he confederacy [under the United States Constitution] may be dissolved, and the confederates [i.e. the states] preserve their sovereignty…[The proposed Constitution] would still be an association of states, or a confederacy…[with the states possessing] certain exclusive and very important portions of sovereign power.” Alexander Hamilton, FP 9 (emphasis added).



“The truth is, that the great principles of the Constitution proposed by the convention may be considered less as absolutely new, than as the expansion of principles which are found in the articles of Confederation.” James Madison, FP 40 (emphasis added).

So, if the Federalist writers describe the United States Constitution as a confederacy form of government (i.e. federal system of government), how can the nature of the union be morphed into a national form of government by virtue of the federal government “enforcing” the terms of that same constitution by a Civil War? It is a political impossibility and is absurd, and to suggest otherwise to Montana citizens deceives them into what has become a system of government contrary to the system our founders drafted and States ratified.



Let us consider some of the federal political axioms that Alexander Hamilton and James Madison prescribed in the Federalist Papers, which were used to convince the States to ratify the U.S. Constitution. These are the ideas which provided the offer, if you will, for acceptance to the States. The following were purported to be true under the terms of the U.S. Constitution of 1787.



1. U.S. Constitution Alone Not Adequate To Limit Federal Government



a) “[P]ower is of an encroaching nature…[I]t ought to be effectually restrained from passing the limits assigned to it…What this security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment [paper] barriers against the encroaching spirit of power?” James Madison, Federalist Paper (FP) 48 (emphasis added).



2. Security of Freedom Found in Structural Composition of the Constitution, Not On Basis of Limited Federal Powers



a) “TO WHAT expedient…shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be…the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” Hamilton, FP 51 (emphasis added).



b) “[A]ll observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government, NOT to the nature or extent of its powers.” Alexander Hamilton, FP 31 (emphasis added).



3. States Possess Sovereign Power as Sovereign, Independent Nations



a) “To argue upon abstract principles, that the co-ordinate authority cannot exist, would be to set up theory and supposition against fact and reality.” Alexander Hamilton, FP 34.



b) “[P]owers of the general government should be limited, and that, beyond this limit, the States should be left in possession of their sovereignty and independence.” James Madison, FP 40.



c) “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” James Madison, FP 45.



4. The Union Under the United States Constitution is a Federal Form, Not National



a) “T]he Constitution is to be founded on the assent and ratification of the people of America…[T]his assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a NATIONAL, but a FEDERAL act.” James Madison, FP 39 (emphasis added).



5. Sovereignty and Authority of States Reaches All Matters Not Delegated to Federal Government



a) “State governments, by their original constitutions, are invested with complete sovereignty.” Alexander Hamilton, FP 31 (emphasis added).



b) “[T]he States will retain, under the proposed Constitution, a very extensive portion of active sovereignty.” James Madison, FP 45 (emphasis added).



6. Each Sovereign Has the Inherent Power to Execute and Defend Its Obligations and Rights



a) “[The States] must possess all the authorities which are connected with this object [of administration of justice], and with every other that may be allotted to their particular cognizance and direction.” Alexander Hamilton, FP 23 (emphasis added).



b) “Independent of parties in the national legislature itself…the State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if any thing improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent.” Alexander Hamilton, FP 26 (emphasis added).



c) “If the [federal] representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state.” Alexander Hamilton, FP 28 (emphasis added).



7. Sovereign Powers Are Uncontrollable by Other Sovereign Powers



a) “[I]ndividual States should possess an independent and uncontrollable authority to raise their own revenues…[T]hey would…retain that authority in the most absolute and unqualified sense; and that an attempt on the part of the national government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of its Constitution***These [federal laws or actions] will be merely acts of usurpation, and will deserve to be treated as such.” Alexander Hamilton, FP 32, 33 (emphasis added).



8. States Cannot Rely on Federal Process To Adequately Limit Federal Government



a) “Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people.” James Madison, FP 46 (emphasis added).



9. States Must Actively Watch For Federal Usurpations



a) “[I]t has…been shown that the federal legislature will not only be restrained by its dependence on its people…but that it will be, moreover, watched and controlled by the several collateral [state] legislatures. Alexander Hamilton, FP 52 (emphasis added).



b) “[I]n a confederacy the people [referring to the United States Constitution], without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these [state governments] will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress.” Alexander Hamilton, FP 28 (emphasis added).



10. State Sovereignty Requires that States Be Equipped and Capable of Resisting Federal Usurpation



a) “When will the time arrive that the federal government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are in a situation, through the medium of their State governments, to take measures for their own defense, with all the celerity, regularity, and system of independent nations?” *** It may safely be received as an axiom in our political system, that the State governments will…afford complete security against invasions of the public liberty by the national authority.” Alexander Hamilton, FP 28 (emphasis added).



11. States Must Interpose and Nullify Federal Usurpation



a) “The plausibility of this objection [concerning the Articles of Confederation which allowed passive nullification] will vanish the moment we advert to the essential difference between a mere NON-COMPLIANCE [under the Articles of Confederation] and a DIRECT and ACTIVE RESISTANCE [under the US Constitution]. If the interposition of the State legislatures be necessary to give effect to a measure of the Union [under the Articles of Confederation], they have only NOT TO ACT, or to ACT EVASIVELY, and the measure is defeated.



“[But under the U.S. Constitution, the State legislatures] would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights…Attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors, UNLESS IN CASES OF A TYRANNICAL EXERCISE OF THE FEDERAL AUTHORITY.” Alexander Hamilton, FP 16 (emphasis added).



b) “Were it admitted, however, that the Federal government may feel an equal disposition with the State governments to extend its power beyond the due limits, the latter [States] would still have the advantage in the means of defeating such encroachments…The opposition of the federal government, or the interposition of federal officers, would but inflame the zeal of all parties on the side of the State, and the evil could not be prevented or repaired, if at all, without the employment of means which must always be resorted to with reluctance and difficulty. On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.



“But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity.” James Madison, FP 46 (emphasis added).



The axioms referenced above alone prove that the States reserved to themselves not only authority and sovereignty to govern their citizens pursuant to their own State constitutions but also the means and methods to desist and resist the federal government from enforcing unconstitutional laws pursuant to the U.S. Constitution. That is, only federal laws passed in pursuance to the United States Constitution are valid. All others are null and void. Thus, state laws passed pursuant to the United States Constitution are as valid as any federal law (and thus, supreme); and as taking an oath to uphold the constitution (not unconstitutional federal laws), State government must resist in compliance with their duty to protect their own sovereignty and citizens.



Admittedly, America’s history possesses political statesmen who did not concede the right of the States to nullify unconstitutional laws, to interpose federal usurpations or to secede from the union—despite all of the evidence to the contrary just cited. These positions’ most astute of all advocates was Daniel Webster, as Brown said in his article. But perhaps Brown did not go far enough, however, in the story of Webster—especially knowing the significance Webster played in this political question.



Webster was considered America’s more knowledgeable statesmen on the anti-nullification/interposition/secession position. Most students of American history are familiar with the Webster-and-John Calhoun’s debates, which were premiere in the minds of politically-concerned Americans (and should be read by every American). However, not without extraordinary significance, Webster changed his original position and eventually saw the error of his ways, this after being known as the go-to guy for the anti-nullification/interposition/secession position. His recanted statement declared that States do in fact hold the kind of sovereignty that only independent nations possess—not as mere counties to the federal government in a consolidated form, but as free and independent as the Declaration of Independence and Treaty of Paris of 1783 declare in a federal form. Webster recants saying,



“It is argued, that though this law of comity exists as between Nations, it does not exist between the States of this Union…In respect to this law of comity, it is said, States are not Nations; they have National Sovereignty; a sort of residuum of Sovereignty is all that remains to them. The National Sovereignty, it is said, is conferred upon this [Federal] Government, and part of the municipal Sovereignty. The rest of the municipal Sovereignty belongs to the States…



“I cannot follow in this train of his argument. I can make no diagram, such as this, of the partition of National character between the State and General Governments. I cannot map it out, and say, so far is National, and so far is municipal; and here is the exact line where the one begins and the other ends…



“There is no such thing as arranging these Governments of course by the laws of gravitation, so that they will be sure to go on forever without impinging…I am not prepared to say that the States have no National Sovereignty.



“The term ‘Sovereignty’ does not occur in the Constitution at all. The Constitution treats States as States, and the United States as the United States; and, by a careful examination, declares all the powers that are granted to the United States, and all the rest are reserved to the States…The States of this Union, are subject to all the voluntary and customary laws of Nations.” Alexander Stephens, A Constitutional View of the War Between the States, 390-391 (emphasis added). See, The Bank of Augusta vs. Earle (1839).

Upon this recognition in 1839, Daniel Webster in 1851 logically determines that the States not only have the right to nullify and interpose an unconstitutional federal law and act but also the ultimate right to secede from a union where it no longer holds the purpose for which it was formed, saying,



“How absurd it is to suppose that when different parties into a Compact for certain purposes, either can disregard any one provision, and expect, nevertheless, the other to observe the rest! I intend, for one, to regard, and maintain, and carry out, to the fullest extent, the Constitution of the United States, which I have sworn to support in all its parts and all its provisions…A bargain cannot be broken on side and still bind the other side…I am as ready to fight and to fall for the Constitutional rights of Virginia, as I am for those of Massachusetts.” Stephens, A Constitutional View of the War Between the States, 404 (emphasis added).

While it is not uncommon that one man may hold two different opinions in his life, the significance of this change in the life of Daniel Webster cannot be overstated. In his more mature years of life, he ardently acknowledges the nationhood status of the States and the unilateral right to nullify unconstitutional federal laws, to interpose federal usurpation and to secede from the union. Webster was not the only significant politician that objectively admitted the power of the States to nullify, interpose and secede from a constitutional perspective. President Woodrow Wilson—not really considered a States’ Rights President by any stretch of the imagination—wrote a book entitled, Disunion and Reunion, and this is what he said concerning the sovereignty of the States and their power to unilaterally exercise their political authority:



“It may…be doubted whether [the federal government constituted one nation created by the whole people, independent of the sovereign states as parties to a compact] was the doctrine upon which the Union had been founded. It seems impossible to deny that the argument [that the union was created by sovereign states through assent to a federal compact] contained much more nearly the sentiment of 1787-89.



“There are no indications that [the Virginia and Kentucky Resolutions of 1789] were considered treasonable at the time they were passed; they do not even seem to have shocked the public sense of constitutional duty. Indeed, the doctrine that the States had individually become sovereign bodies when they emerged from their condition of subjection to Great Britain as colonies, and that they had not lost their individual sovereignty by entering the Union, was a doctrine accepted almost without question, even the courts, for quite thirty years after the formation of the government.



“Those who worked the theory out to its logical consequence described the sovereignty of the federal government as merely an emanation from the sovereignty of the States. Even those public men who loved the Union most, yielded theoretical assent to the opinion that a State might legally withdraw from the government at her option, and had only practical and patriotic objections to urge.” Woodrow Wilson, Disunion and Reunion, 1829-1909, Ed. Albert Hart, (Longman’s, Green and Co., (Chicago, IL, 1918), 45-46 (emphasis added).

Of course Wilson’s understanding of history comports to what Alexander Hamilton and James Madison explained in the Federalist Papers regarding the States’ power to secede from the union where they determine that the federal government has usurped its delegated authority and has (presumptively) become tyrannical. Hamilton and Madison said this on the subject:



a) “If such presumptions [of schemes by the federal government to subvert the liberties of a great community] can fairly be made, there ought at once to be an end of all delegated authority. The people should resolve to recall all the powers they have heretofore parted with out of their own hands, and to divide themselves into as many States as there are counties, in order that they may be able to manage their own concerns in person.” Hamilton, FP 26 (emphasis added).



b) “[We] rest all our political experiments on the capacity of mankind for self-government. If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible.” James Madison, FP 39 (emphasis added).



c) “We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form?… [If] the Union itself [becomes] inconsistent with the public happiness…Abolish the Union.” James Madison, FP 45 (emphasis added).



The founding generation was wise and studied enough to know that were the States to lose their ability to protect themselves against federal usurpations[1], freedom would be lost (and that was the social and political presumption when only 3 million people composed the States [and less than that considering only 9 States were required to secede from the Articles of Confederation and accede to the U.S. Constitution], where agriculture was the main source of livelihood, where the cultures were largely Christian in practice, where only 9 [of 13] States were to compose the union, where technology did not exist to allow the federal government to intrude upon rights as it does today, where the States were considered much stronger than the federal government and would remain as such). Those conditions no longer exist, and in fact are inverted. What does this say of the purpose and presumptions of forming a political union under the terms then proposed? Therefore, the need for the States to use their God-granted authority and sovereignty to resist federal encroachment and long-train of abuses should be obviously necessary today more than the founders could have imagined in 1787. In truth, we have seen the predictions of the Anti-Federalists (men such as Patrick Henry and Samuel Adams—the fathers of the American Revolution) come to fruition before our very eyes.[2]



The quintessential element of sovereignty is the ability to protect and execute it. This necessarily includes the tools of nullification, interposition and secession. Any student of political philosophy who has studied what our founders studied (Algernon Sidney, John Locke, Jean Rousseau, Hugo Grotius, Sir Edward Coke, Jean Burlamaqui, Emer Vattel, William Blackstone, Charles Montesquieu, etc.) know that without this innate and inherent ability to protect sovereignty, there is no sovereignty at all. We know that this element exists as a whole of the U.S. Constitution’s fundamental framework. Without it, the constitution would not have been ratified. To destroy this principle is to destroy the federal union for the sake of a consolidated national supremacy, which was once rejected in 1787. Indeed, if what Brown says is true, then the founders who advocated the ideas represented above in the Federalist Papers were lying to the people of the States to hoodwink them into ratifying a constitution contrary to those federal ideas. That is fraud and is at best illegal, not to mention tyrannical. At the very least, all methods of constitutional interpretation should be viewed in a light more favorable to maintaining the sovereignty which the States originally possessed, for sovereignty cannot be passed or waived by implication, can only be given by expressed consent only. Yet, we are told to believe that regardless of what the constitution’s intent was, a Civil War diabolically launched by a man who knew that war was necessary to finally subjugate the States to the federal government’s supremacy determined the issue.



God save us from such people who actually get elected into public office and implement government policy, for these are they who are playing with fire, not the other way around. In fact, they have been playing with this deadly fire for so many decades, and those of us who have felt the painful burn of their pyromania are finally fed up enough to start doing something about it.





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[1] note: a constitutional plan to eliminate State Sovereignty and to grant to the national government the power to negative all state laws was proposed but rejected in the 1787 Constitutional Convention.



[2] What did they propose and predict? Some suggested that several confederacies be formed to allow the people to govern themselves at a closer, more controllable level. Some suggested that the terms of the U.S. Constitution gave too much power to the federal government that would be used to subvert State sovereignty.