Edwin Vieira - Thoughts On A Concurring Opinion

Edwin Vieira – Thoughts on “A Concurring Opinion”
THOUGHTS ON “A CONCURRING OPINION”
PARTS 1-12
By Dr. Edwin Vieira, Jr., Ph.D., J.D.

March 3, 2010 through April 8, 2010
http://www.newswithviews.com/Vieira/edwin210.htm
Responding to Timothy Baldwin’s “A CONCURRING OPINION FOR SECESSION (Part 1-12)”
Timothy Baldwin’s original article, sections 1-12 combined, is found here;

http://www.scribd.com/doc/26576127/Timothy-Baldwin-A-Concurring-Opinion-for-
Secession
I welcome the opportunity to have an ethereal discussion with Timothy Baldwin—it will not
be a “debate”, as we agree on too much—concerning “secession”, not only because of the
intrinsic value of the subject, but also because of Mr. Baldwin’s erudition and gentlemanly
manner. No one in this discussion will, to use his words, “try to paint advocates for states’
rights as loony, nutty, irrational, or otherwise enemies to the union”—because we all know
that “some of the most well-recognized[,] intelligent and articulate statesmen and patriots
throughout America’s history have advocated the right of States to secede from the Union,
both under the Articles of Confederation and United States Constitution”. And we also know
that many eminent statesmen and patriots have taken the opposite position. Interestingly,
too, both Mr. Baldwin and I “advocate[ ] the right of States to secede”, albeit in some
particulars under different circumstances and procedures. Which points up a problem in
this discussion: namely, that “the right of a State to secede” means different things to
different people—not all of whom are careful to define their terms—which no doubt is why
there has been so much (probably unnecessary) dissension on this subject over the years.
To clear the decks for action, I shall agree with Mr. Baldwin on several key points that he sets
out in his article “A CONCURRING OPINION FOR SECESSION (Part 1)” (sometimes,
though, with my agreement properly qualified):
1. It is not my belief, as it is not his, that “the states do not have the power to do any act
contrary to the federal law until the supreme court rules that the law is unconstitutional”. The
States certainly do have such a power, and with it a right and even a duty to act in certain
circumstances—if one carefully defines the terms “contrary to the federal law”. For if a
purported “statute” of Congress is unconstitutional, it is therefore void—a legal nullity—from
the very beginning, not just after some court has so pronounced it. And during that
intervening period from purported “enactment” of the “statute” until the judicial declaration
of its unconstitutionality, it must be the prerogative of the States and the people to protect
themselves, by all lawful means, against any “enforcement” of that legally nonexistent
“statute”. Otherwise, a legal nullity would be treated as an actual “law”, and therefore in that
interval would effectively be a “law”, contrary to its utter inability to be a “law” at any time—
which of course is absurd.
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Well, then, on what constitutional basis can the States enforce their right and fulfill their duty
in this regard? Actually, there are many. For one example, Section 1 of the Fourteenth
Amendment provides in part that “[n]o State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States” (emphasis supplied).
The “privileges or immunities of citizens of the United States” include at least all of the
freedoms enumerated in the Bill of Rights. See, e.g., William W. Crosskey, Politics and the
Constitution in the History of the United States (Chicago, Illinois: University of Chicago
Press, 1953), Volume 1, Chapters XXX through XXXII. And, as the Fourteenth Amendment
establishes, every citizen of a State is also a “citizen[ ] of the United States. Now, a State
“make[s]” a “law” by enacting a statute of her own. But, besides enforcing her own laws, she
might also “enforce a[ ] law” of the United States—either directly, with her own policemen,
prosecutors, and judges; or indirectly, by allowing agents of the General Government to
operate within her territory for that purpose. If a purported “law” of the United States is
unconstitutional, though, and therefore “abridge[s] the privileges or immunities of citizens of
the United States”; and if the State allows rogue agents of the General Government to
“enforce” that “law” within her territory when she knows of the “law’s” unconstitutionality
and could prevent its “enforcement”; then the State is a complicitor in “enforc[ing] a[ ] law
which shall abridge the privileges and immunities of citizens of the United States” and of her
own citizens. So, in such a case, the State’s constitutional duty—and therefore right—under
the Fourteenth Amendment is to oppose any and all purported “enforcement” of that “law” by
rogue agents of the General Government when and as it occurs. For, if the State does not act
immediately to protect her citizens’ “privileges or immunities”, she contributes by her
inaction to—indeed, encourages, facilitates, and approves—the very result the Amendment
prohibits. The relevant maxim of the law is: QVI POTEST ET DEBET VETARE TACENS
IVBET. (“Who can and ought to prohibit something, by being silent commands it.”) The
Fourteenth Amendment does not license the State to sit idly by until some court has issued an
opinion on the purported “law’s” unconstitutionality—possibly years later, and even then
perhaps the product of error or bad faith. Rather, it declares that “[n]o State shall”, in the
here and now. And it declares that “[n]o State shall”, not that some court will direct the State
to act or not, and the State must comply in the manner of a mindless robot with the court’s
directive, even if the State knows full well that the court’s directive itself violates the
Fourteenth Amendment.
This right, power, and duty of a State to prevent oppression of her citizens by rogue agents of
the General Government is called the doctrine of “interposition”. It must be distinguished
from the doctrine of “nullification”. “Interposition” presumes that a purported “statute” of the
General Government is unconstitutional, and therefore unenforceable—and that, as a result of
this situation, the State herself should not enforce, or allow anyone else to attempt to enforce,
that void “statute” within her territory. The State herself does not declare the “statute”
unconstitutional—the Constitution does. The State merely recognizes the existence of this
state of affairs. The invalidity of the “statute” is not a matter of the State’s action, but of the
“statute’s” objective inconsistency with the Constitution. The “statute” is unconstitutional and
therefore void whether or not the State so declares. (And, conversely, the State’s declaration
that an unconstitutional “statute” is constitutional cannot make it so.) Whereas, to many
people, “nullification” imports the right of a State to refuse to honor a statute of the General
Government, even if that statute is constitutional, merely because the State disagrees with
the political, economic, or social policy the statute promotes. Obviously, however, if the
purported “statute” is unconstitutional, no need (nor even any possibility) exists for the State
to “nullify” it, because the “statute” has been and could be nothing but a nullity from the
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moment of its purported “enactment” as the necessary consequence of its own substance.
The State cannot make the “statute” any more null and void than it already is, simply by
pointing out its nullity. Of course, the State may (and should) declare her intention not to
enforce, or not to allow the enforcement of, the “statute”, because of its legal nullity. But that
is a statement of “interposition”, not “nullification”.
2. I agree with Mr. Baldwin that, in some situations, “the individual state’s right to resist
federal tyranny is not conditioned upon the approval of three fourths of the states or federal
supreme court”—because, of course, in some situations, the “three fourths of the states” or
the “supreme court” could themselves be part and parcel of the tyrannous regime. And no one
requires permission from a tyrant or his minions in order to resist his tyranny. But one must
also recognize that, in some situations, “three fourths of the states” or the “supreme court”
might be willing and able to supply a remedy for what appears to be “federal tyranny”,
through procedures the Constitution sets out in Article V or Article III or both. In which case,
under the doctrine of “exhaustion of remedies”, the first step on the part of an aggrieved State
should be to invoke those procedures. If no adequate remedy is forthcoming, either because
those procedures cannot supply one or because the “three fourths of the states” or the
“supreme court” refuse to abide by the procedures in good faith, or the “federal tyranny”
escalates to the point at which any remedy under Article V or Article III will come too late,
then the State can consider other means of seeking redress for her injuries.
Thus, here we have another example of why definitions are important. Plainly, “the individual
state’s right to resist federal tyranny”—in the sense of her people’s “right to resist” any form
of tyranny—is not and cannot be “conditioned upon” anything, except the people’s
compliance with “the Laws of Nature and of Nature’s God”. Within the framework of those
laws, the people’s right to defend their lives and liberties against any and every form of
aggression is absolute. But a State can “resist federal tyranny” within the bounds of the
Constitution before she finds herself compelled to “resist” within (say) the bounds of the
Declaration of Independence. And that measured course of action not only is not
dishonorable or unpatriotic, but also is just (because lawful) and prudent (because careful).
3. I further agree with Mr. Baldwin, without qualification, that “a state has the power and yes,
the duty to protect its sovereignty and the powers granted to it by the people of that state”.
The practical questions, though, are: (i) whether “secession” is a legitimate means to do so
(which depends upon one’s definition of “secession”); and (ii) whether, at this time in the
United States as a whole or within any particular State, “secession” would be possible, and
(if possible) effective for the purposes Mr. Baldwin cites (which depends upon a careful
evaluation of the present “balance of forces” on the side of tyranny and the side of freedom,
respectively).
Finally, the readers of these commentaries must keep in mind that my goal, and I am
confidant Mr. Baldwin’s, too, is not simply to win an argument — which is ultimately a
Sisyphean endeavor anyway, there being no end to argument (particular among lawyers). The
point is to come to a conclusion about what can be done, and should be done, to save this
country in the very near future.
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PART 2
In responding to Timothy Baldwin’s “A CONCURRING OPINION FOR SECESSION (Part 2)”,

I should first clarify a few points:
It is many secessionists’ position, but not mine, that the Constitution is “a contract between
the States and the General Government” or “a contact among the States”. I reject the former
theory, because, inasmuch as the Constitution created the General Government from nothing,
the General Government could not possibly have engaged in any “offer and acceptance” with
the States (or anyone else) in order to form the Constitution. I reject the latter theory, because
the Constitution does not say that “We the States of New York, Rhode Island, Virginia, and so
on” “do ordain and establish this Constitution”. Neither does it say that “We the People of the
States of New York, and so on” “do ordain and establish this Constitution”. Rather, it says that
“We the People of the United States” “do ordain and establish this Constitution”, which is
something quite different from the first two alternatives. Thus, the Constitution is what
political philosophers call a “social contract” among an entire people, not just a “contract” or
“compact” among discrete entities called “States”, and therefore is more binding than such a
“contract” or “compact”. But, for purposes of some of this discussion, I am quite willing to
assume, along with the “secessionists”, that the Constitution is simply a “contract” among the
States—because, as I have pointed out, their own argument on that score does them more
harm than good.
When (in my previous article) I mentioned the “detrimental-reliance” rationale for the
binding nature of contracts, it was to provide a general background on principles of contract-
law for lay readers of these articles, not to argue that the legality of some State’s “secession”
from the Union absolutely depends upon whether the “seceding” State has suffered or will
suffer some grievous harm from her adhesion to the Union. It is fairly obvious that, in
adhering to the Constitution since 1788, the States have radically changed their positions
from what those positions would have been in the absence of the Union—Article I, Section 10
of the Constitution alone proves that. But the questions relating to “secession” which are of
interest to me are: (i) Is “secession” legal under the Constitution, whether or not the
“seceding” State has been or will be harmed by being or remaining in the Union? And (ii) if
“secession” were legal, under the present circumstances in which this country finds itself
would “secession” cause so much harm to the States, including even the “seceding” State
herself, as to be an imprudent course of action? After all, if (as seems obvious) “secession” is
legal under Article V of the Constitution, it could occur even if the dissenting one-fourth of
the States were harmed by it, or if none of the States were harmed by it, or even if all of the
States were harmed by it. But whether it were sensible to promote “secession” at all would
depend upon one’s prediction of what and how much harm might ensue from it.
Now, addressing Mr. Baldwin’s points:
1. Mr. Baldwin writes that “[t]o avoid the conclusion that the US Constitution is simply a non-
binding agreement upon the States, Vieira points us to ‘what lawyers call’ detrimental
reliance, offering a sort of alternative to the ‘contract/compact’ theory of secessionists”. In my
view, however, “detrimental reliance” is not “a sort of alternative to the ‘contract/compact’
theory of secessionists”, but part of the explanation for the binding nature of contracts in
general. Anyone who enters into a contract thereby deprives himself of certain degrees of
freedom, on the expectation that the other parties to the contract will adhere to the
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agreement. That deprivation, in and of itself, is “detrimental reliance”, even if the other
parties never “breach” the contract or if the other parties’ “breach” of the contract should
result only in what lawyers call “nominal damages”. In any event, as I pointed out before,
neither I nor anyone else should have any difficulty in “avoid[ing] the conclusion that the US
Constitution is simply a non-binding agreement upon the States”, because the binding nature
of the Constitution is explicitly set out in the Constitution itself, in Article VI. As I explained
in my initial article in this discussion, if the States can act only through their officers, and if
(under Article VI), each and every one of those officers “shall be bound by Oath or
Affirmation, to support this Constitution”, then the States must be “bound”, too. Certainly, if
words have meaning, no one can discover “a non-binding agreement upon the States” in a
“supreme Law” that explicitly holds all of the States’ officers “bound”.
2. Mr. Baldwin argues that “[t]he detrimental reliance theory * * * is not at all in order as it
relates to the independent actions of independent states. Is the United States perpetually
bound by a treaty to a foreign country forever where that country has materially breached the
agreement?”
Well, the answer to that question depends upon the specific terms of the particular
agreement, does it not? Certainly even “independent states” can (and do) make treaties that
are to some degree binding on them. And they can (and do) provide in treaties the procedures
by which those treaties may be amended, modified, extended, terminated, renegotiated,
renounced, annulled, and so on. And they can (and do) define in treaties what constitutes
“breaches” thereof, and who will be the judge of the occurrence of a “breach”, and what
remedies will be available to the non-“breaching” party. Of course, the “breach” of a treaty
might be so extensive that it would be impossible for the injured party to use the methods for
redress stipulated in the treaty. But to know whether that is the case, one must first identify
those methods and then compare the “breach” to them.
In any event, I doubt that Mr. Baldwin is contending that the Constitution is nothing but a
“treaty” among “independent States” (a position held by vanishingly few “secessionists” these
days). Yet, even if he does so contend, the Constitution contains a provision for amending, or
even terminating, the supposed “treaty”: namely, Article V. So the “independent States” are
not “perpetually bound” to the “treaty”, although they are bound to some degree. The
question then becomes: Is the alleged “breach” of the Constitution so gross that Article V no
longer provides an adequate remedy for the aggrieved States? Or Article III? Or some other
provision of the Constitution? That is, why should the actual terms and conditions of the
supposed “treaty” themselves not be consulted, and if at all possible applied, before the
“treaty” is denounced as hopelessly violated, and some remedy with potentially extremely
deleterious consequences is invoked?
And who is it, in Mr. Baldwin’s view, who has “materially breached the agreement”, and
whose “breach” justifies the “secession” of some State? Is it the General Government, which is
not a party to the “agreement” at all, being a mere product of the “agreement”? Or is it one or
more of the States? Or is it some part of “We the People” who “ordain[ed] and establish[ed]
th[e] Constitution” in the first place, as its Preamble attests? In devising remedies for
“breaches” of “agreements”—whether “treaties”, “contracts” “compacts”, or some other
arrangements—it is necessary first to identify all of the parties to the agreement, and then to
single out the malefactors among them and of precisely what their wrongdoing consists.
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3. Mr. Baldwin correctly points out that “[n]ot one state expressly conditioned their
ratification of the constitution upon the guarantee that all of the ratifying states (present and
future) will be bound to that union, even though all of the states knew of its possibility”. But
no principle of contract-law requires that the parties to a contract expressly condition their
agreement upon such a “guarantee”. The binding nature of a true contract on all of the parties
is always presumed from the agreement itself, even if the contract is silent on that score (as
most contracts are). Nonetheless, in Article VI of the Constitution (as in Article XIII of the
Articles of Confederation), this “guarantee” does exist. Plainly enough, when the States
ratified the Constitution they knew full well that they were acceding to a document which
expressly required that all of their officers “shall be bound by Oath or Affirmation, to support
this Constitution”. The Preamble sets out as its very first goal “to form a more perfect
Union”—“more perfect”, that is, than the “Union” under the Articles of Confederation, Article
XIII of which declared to be “perpetual”, unless certain procedures in that Article were
followed. So, to what conclusion could any State have come, other than the Constitution itself
provided “the guarantee that all of the ratifying states (present and future) will be bound to
that union”, and that her ratification of the Constitution was an acceptance of that situation?
4. Mr. Baldwin correctly points out that “[t]hey [i.e., the States] joined the union based on the
moral force of commonality”. That motive does not detract, however, from the legally binding
force of the Constitution. People enter into contracts for all sorts of reasons—“commonality”,
consanguinity, the hope of a sharp dealer that he has fleeced a sucker, and so on. But their
reasons are almost always irrelevant. (If the reasons were, say, to facilitate a criminal act, then
the contract would be void ab initio.) If the agreement satisfies the standards of a “contract”,
then it is binding on the parties.
5. Mr. Baldwin then asks, “how can it be that the colonies had a right to secede from Great
Britain which was a bond connected by a monarchy with no form of voluntary union present,
but there can be no right to secede in a federal compact formed voluntarily by sovereign
states?” Actually, the Colonists’ theory of their political connection to, and rights as against,
the British Monarchy was a bit more complex than Mr. Baldwin makes it out to be. See, e.g.,
Declaration of the Causes and Necessity of Taking Up Arms (6 July 1775). But, in any event,
as the Colonists themselves “submitted to a candid world”, their right to “secede” depended
on the existence of the particular, rather extreme conditions the Declaration of Independence
identified. The Declaration did not contend that the Colonists had an absolute right to
“secede” from Great Britain for just any reason, at any time, at their own unilateral discretion,
and even if the government of Great Britain were a “just government” that had not “become[ ]
destructive of [men’s unalienable Rights]”. Rather it listed reason after reason that proved the
existence of “a long train of abuses and usurpations * * * evinc[ing] a Design to reduce the[
Colonists] under absolute Despotism”. Doubtlessly, if the very same conditions existed today
as existed then, some or all of the States could claim a right, and even a duty, to “secede”. But
the question is: Do those conditions exist today? That they do may be an allegation that many
contemporary “secessionists” make. But, in light of the seriousness of the consequences of
any attempt at “secession”, something more substantial in the way of actual evidence is
needed, and should be required.
6. Mr. Baldwin argues that “each colony had the individual decision to make for itself
whether or not it would secede [from Great Britain], and they maintained that independence
from each other as evidence[d] by their Declaration to the world of being free and
independent states, having all the powers that independent nations have. If there is anything
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that is clear from the Declaration of Independence period, it is that the people wanted to
maintain a federal form of government, not a national one”. But American history did not end
with “the Declaration of Independence period”. Far from “maintain[ing] th[eir] independence
from each other”, even before 1776 the States had united in fact to fight Great Britain, and
thereafter codified that union in law with the Articles of Confederation and the Constitution.
Moreover, in the Articles and the Constitution, We the People did maintain “a federal form of
government”. It happens, under both documents, to be “a federal form of government” which
sets out specific procedures plainly relevant to “secession”. But where is it written that “a
federal form of government” cannot incorporate such procedures, or that if it does so they
may simply be disregarded? And if such notions were written somewhere else, they were most
assuredly not written into the Articles of Confederation or the Constitution, which are the
controlling documents for the purposes under discussion here (unless and until a
“Declaration of Independence situation” arises). That every “federal form of government”
known throughout prior history, bar none, had allowed for unlimited “secession” would prove
nothing more than that the Constitution is a new form of “federal government”. Are not
Americans entitled to innovate in that field?
7. Mr. Baldwin properly points out that “the natural and contract law principles of course
work both ways: where a state has entered the union with the promise or assurance that the
fundamental laws, principles and purposes of the constitution be followed, then the harmed
state has the right to seek remedy for that breach and to mitigate its damages as far as
possible for the preservation of that state where those guarantees are not followed”. Yet this
tells us nothing about what procedure the aggrieved State should follow to achieve those
ends, either as a matter of law or under the counsel of prudence. Moreover, it begs the
questions of whether “the [allegedly] harmed state” is actually “harmed”, who is to decide
that matter, and what remedies are available to redress the State’s injuries. In addition, what
of the other States? As Mr. Baldwin says, these principles “work both ways”. So, if one State
has a right to “secede” (under whatever procedure) when “the fundamental laws, principles
and purposes of the constitution” are not followed, do not the other States have just as valid a
right to prevent that State from “seceding” when she acts in violation of “the fundamental
laws, principles and purposes of the constitution”? For example, assume that (say) the State
of South Carolina seeks to “secede”. Under Article V, that State has a plain constitutional right
to petition Congress to propose an amendment, or to ask the legislatures of other States to
call for a convention, for that purpose. But if South Carolina is not successful in this endeavor,
yet attempts to “secede” anyway, the rest of the States can claim a right to prevent her
“secession”—perhaps through the General Government, by seeking indictments on charges of
perjury or false swearing against the officers of South Carolina who violate their
constitutional “Oath[s] or Affirmation[s]” of office by promoting “secession”, or perhaps
through more direct action even as the Northern States did in the 1860s.
8. Mr. Baldwin then quotes from the State of New York’s ratification of the Constitution,
That all Power is originally vested in and consequently derived from the People,
and that Government is instituted by them for their common Interest Protection
and Security.* * * * *
That the Powers of Government may be reassumed by the People,

whensoever it shall become necessary to their Happiness * * * .
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Documents Illustrative of the Formation of the Union of the American States, House
Document No. 398, 69th Congress, 1st Session (Washington, D.C.: Government Printing
Office, 1927), at 1034. He might also have quoted the ratification of the State of Rhode Island,
That all power is naturally vested in, and consequently derived from the People;
that magistrates therefore are their trustees and agents, and at all times
amenable to them.
* * * That the powers of government may be reassumed by the

people, whensoever it shall become necessary to their happiness[.]
Id. at 1052. From New York’s ratification, Mr. Baldwin concludes that “[h]ere, New York put
the world on notice that the people and their agents (state government) retain the right to
withdraw themselves from political associations where such unions become destructive to the
ends of government”. But where in the ratifications of either New York or Rhode Island does
any mention of “state government” appear? The ratifications say that “the powers of
government may be reassumed by the people”. And to which “people” do these ratifications
refer? Mr. Baldwin assumes—quite gratuitously, I must suggest—that the ratifications refer to
“the people” of New York or Rhode Island alone. But these were not the only “people” who
were responsible for ratifying the Constitution. Rather, the Constitution itself says that “We
the People of the United States” as a whole “do ordain and establish this Constitution”. Thus,
these were “the people” to whom New York must have referred when she said “That all Power
is originally vested in any consequently derived from the People”—for the power to “ordain
and establish” the Constitution was not vested in, and did not derive from, only the people of
New York, but in and from all of We the People. And these were “the people” to whom New
York must have referred when she said “that Government is instituted by them”—for the
Constitution (the only charter of “Government” involved in the process of ratification) was
not instituted by the people of New York alone, but by all of We the People, as the
Constitution itself declares and which New York’s ratification of the Constitution affirms.
So, the only way that the ratifications of New York and Rhode Island can be squared with the
Constitution is to read them in precisely the opposite manner from that proffered by Mr.
Baldwin—to say, not that individual States may “secede” from the Union ad libitum, but that
only We the People as a whole may change the government that We the People created,
thereby excluding individual States from the unilateral exercise of that authority.
Rather compelling proof of this conclusion comes from Virginia’s ratification, which stated:
We the Delegates of the People of Virginia * * * Do in the name and in behalf of

the People of Virginia declare and make known that the powers granted under
the Constitution being derived from the People of the United States may be
resumed by them whenever the same shall be perverted to their injury or
oppression[.]
Documents Illustrative of the Formation of the Union of the American States, at 1027. With
the usual care for legal niceties characteristic of her statesmen in that era, leaving nothing to
implication, Virginia made a crystal-clear distinction between “the People of Virginia” and
“the People of the United States”, and plainly held that “the powers granted under the
Constitution [were] derived from the People of the United States”, not just “the People of
Virginia” or of any other State unilaterally; and that those powers “may be resumed by them”,
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that is, “the People of the United States”, not just “the People of Virginia” or of any other State
unilaterally.
So, these documents do not support Mr. Baldwin’s sweeping assertion that New York’s (or
Rhode Island’s, let alone Virginia’s) ratification asserted an unilateral “‘right [of each State] to
withdraw’” on her own initiative from the Constitution. As Mr. Baldwin himself correctly
states, “[y]ou cannot attempt to justify a position based on the constitution when the
documents ratifying the constitution show the opposite political intent and effect. * * * One
cannot look at the words today and apply his own subjective meaning to them. This
contradicts every rule of sound construction.”
9. Finally, Mr. Baldwin concludes that,
[i]f detrimental reliance is the pad-lock holding the states together, then it most
certainly is the key to unlock the states’ part in the union where the system of the
union itself causes detriment to the states, such that a state’s very survival and
freedom’s perpetuation is best accomplished through secession from the existing
union. As soon as this theory is admitted, contract laws necessarily appear
between the states and with the created federal government * * *.
But one can admit this theory for the purposes of argument without thereby agreeing that “a
state’s very survival and freedom’s perpetuation is best accomplished through secession from
the existing union”, either always or at the present time. Depending on circumstances, “a
state’s very survival and freedom’s perpetuation” could be most threatened “through
secession”. This proved to be the case for the Southern States in the 1860s, and could just as
well be the case today.
PART 3
It is somewhat difficult for me to respond to Timothy Baldwin’s “A CONCURRING OPINION

FOR SECESSION (Part 3)”, because Mr. Baldwin focuses on various generalities that skirt the
issue of whether “secession” is legitimate under the specific terms of the Constitution of the
United States, not simply under amorphous “political maxims”.
1. Mr. Baldwin sets up as his target what he calls “Anti-Secessionist Argument #2: The US
Constitution is not a Federal Compact of States/Bodies-Politic, but Is an Independent
Government Formed by One People/Body-Politic, Without Regard to State Powers”. Now, it
is fairly obvious that part of this contention is true: namely, that the General Government
certainly is an “independent government”, in the sense that it does not require the assent of
each State, or of every State, or of any particular number of States in order to enact legislation
that is binding on individuals who reside within the States, and in some cases even on the
States themselves. See, e.g., U.S. Const. Article VI, cls. 2 and 3, and Article I, § 10, cls. 2 and 3.
On the other hand, Mr. Baldwin’s statement of the argument sets up something of a straw-
man, because I doubt that any “anti-secessionist” who is also a constitutionalist believes that
the General Government was created, or can operate today, “without regard to State powers”.
See, e.g., U.S. Const. Amendment X. Moreover, for the purposes of this discussion I am
perfectly willing to accept that the Constitution is “a federal compact of States” which, to
some degree, must be construed according to the general principles of “contracts”. My point is
that the substance of this “contract” must be determined by examining the actual language of
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the “contract” itself, and what that language means to any reasonable person according to the
“objective” theory of interpretation, not by reliance on various individuals’ opinions about
what the language should mean according to their idiosyncratic understanding of “political
maxims”.
2. Mr. Baldwin argues that “if in fact the constitution is a federal compact assented to by the
states in their individual and independent capacity as a sovereign state, then political maxims
held true in American jurisprudence prove that those states may secede from the union in like
manner that they entered: through the UNILATERAL action of that body-politic”. The truth
of this assertion, however, depends, not on the mere name “federal compact” that can be
applied to the Constitution, but instead on what in substance this “compact” actually
provides. People (and bodies politic) do enter into “contracts” “through the[ir] UNILATERAL
action”; but they cannot lawfully “secede” from “contracts” in that manner, unless the
“contracts” specifically sanction such “secession”. This includes the States. See U.S. Const.
Article I, § 10, cl. 1 (“[n]o State shall * * * pass any * * * Law impairing the Obligation of
Contracts”, which has been held to apply to a State’s own “Contracts”).
It is certainly possible that a “federal compact” could provide for “unilateral secession”, or for
“no secession at all”, or for “secession according only to specific procedures set out in the
compact”. Indeed, the third of these possibilities is precisely what the Articles of
Confederation explicitly did provide in Article XIII. So, were the Articles of Confederation not
“a federal compact assented to by the states in their individual and independent capacity as a
sovereign state”? Or, if the Articles were such a “compact”, then is not Mr. Baldwin’s general
assertion proven wrong by the very predecessor of the Constitution, “assented to by the [very
same] states in their individual and independent capacity” that then “assented” to the
Constitution? And, if so, must not the Constitution be construed according to the selfsame
principles—that is, with specific reference to and objective interpretation of its own terms, not
just according to mere “political maxims”? Or are the plain terms of Article XIII of the
Articles—and, presumably, the plain terms of the Constitution, too—to be overridden by these
“maxims”? In which case, are we to treat these “maxims” as “the supreme Law of the Land”,
in defiance of the Constitution? See Article VI, cl. 2.
3. Mr. Baldwin contends that “[t]he question should be this: was the US Constitution formed
by the people of states as an individual body-politic, or was it formed by the people as one
body-politic?” But does the legality of “secession” under the Constitution really depend upon
a definitive answer to this question? That is, whoever formed the Constitution, could it not
have provided for “unilateral secession”, or for “no secession at all”, or for “secession
according only to specific procedures set out in the compact”? On precisely what basis should
we conclude that the issue of “secession” under the Constitution must be settled merely by
identifying the authors of the document, and not by studying its actual terms? Did “the
people of states as an individual body-politic” have any less discretion as to that matter than
“the people as one body-politic” (or vice-versa)?
4. Mr. Baldwin states a “conclusion” with which, for purposes of argument in this discussion,
I shall agree: namely, “the US Constitution was formed, NOT by one body-politic of the
American nation, but rather, the US Constitution was formed by individual, several and
separate bodies-politic of states through their ASSENT in the form of a FEDERAL
COMPACT”. Even if true, however, this does not settle the issue of what that “FEDERAL
COMPACT” actually provides with respect to “secession”, because no one can doubt that
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“individual, several and separate bodies-politic of states” could agree through “compact” (or
“contract”, or “agreement”, or under whatever other rubric one may like) to whatever terms
they desired with respect to “secession” from the “compact”. Mr. Baldwin’s burden is to prove,
not simply that the Constitution is “a FEDERAL COMPACT”, but that it is a “federal
compact” of a very specific kind with respect to “secession”.
It is not enough for Mr. Baldwin to argue that “were it accepted that the US Constitution was
in fact a federal compact created by the assent of sovereign states, then the resulting
conclusion would confirm that those states have the right to secede from the compact thus
formed, as expressed by the expounders of the Law of Nations”. For it is simply not true that
in the late 1700s the Law of Nations absolutely precluded the possibility of “a federal compact
created by the assent of sovereign states” that prohibited “secession” at all, or that allowed
“secession” only according to some special procedure. (Or was Article XIII of the Articles of
Confederation in violation of the Law of Nations?) And even if that had been the view of every
last one of Mr. Baldwin’s “expounders” of the Law of Nations at that time, nothing could have
prevented the sovereign people of the several States from confounding those “expounders” by
creating an entirely new form of “federal compact” with respect to “secession”. Those
unnamed “expounders”, after all, were not the authors of the Constitution. And did not the
Declaration of Independence assert, on behalf of “the good People of these Colonies”, the
people’s absolute right to form a new government on principles of their own choosing:
namely, that “whenever any Form of Government becomes destructive of [men’s unalienable
rights], it is the Right of the People to alter and 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” (emphasis supplied)? Why could
“the good People” of the independent States not have “organiz[ed the] powers [of ‘secession’]”
in a form unknown to the old “expounders” of the Law of Nations? And, if they did, where
would the evidence of their decision to do so be found, other than in the terms of the
Constitution itself? (I leave aside the rather extensive problem of whether the “expounders” of
the Law of Nations that Mr. Baldwin has in mind were correct in their exposition of that law
as to “secession”, because I believe that the Declaration of Independence renders the views of
these and all other such “expounders” beside the point in any event.)
5. So, it begs the question for Mr. Baldwin to point out—although he does so correctly, I
believe, in terms of the procedure the Founders followed—that “[i]n truth, every aspect of the
ratification of the US Constitution was federal in nature, meaning formed by independent
and sovereign states”. For that “federal” method of forming the Union was not necessarily
inconsistent with the Union’s disallowing “secession” unless under some specific procedure
set out in the very document establishing the Union. Rather, Mr. Baldwin must prove that it
was impossible in principle, as a matter of law, for “independent and sovereign states” in the
late 1700s to enter into a “compact” or “contract” so providing as to “secession”; or, that if it
was not impossible in principle for “independent and sovereign states” to enter into such a
“compact”, then in fact the Constitution cannot possibly be construed so to provide.
Now, inasmuch as Article V of the Constitution can be construed as a perfectly adequate

procedure for “secession” (even though not as broad as Mr. Baldwin would like), it would
seem that Mr. Baldwin’s task is to prove that Article V is actually invalid to that extent—that
is, that somehow general “political maxims” and opinions of certain “expounders” of the Law
of Nations in the late 1700s can compel us to disregard—actually, can set aside and, as it were,
nullify—the terms of Article V insofar as those terms can be applied to “secession”. Inasmuch
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as Article V itself tells us that the only present limitation on its application is “that no State,
without its Consent, shall be deprived of its equal Suffrage in the Senate”, and inasmuch as
this limitation is perfectly compatible with the voluntary “secession” of any State, Mr.
Baldwin will have to bear rather a ponderous burden of proof in this particular.
PART 4
It is frustrating for me to respond to Timothy Baldwin’s “A CONCURRING OPINION FOR

SECESSION (Part 4)”, because Mr. Baldwin insists on presenting the issue as “whether the
states voluntarily assented to a federal compact or whether the whole people created a
perpetual federal government at the exclusion of the state’s right to secede”. Whereas, I am
willing to accept for purposes of argument that the States did “assent[ ] to a federal compact”
that did not “create[ ] a perpetual federal government”, but instead did (and still does) allow
for an individual State to “secede”, but only under a constitutionally specified procedure in
which the other States have a right to participate. So I am left in the position of being
saddled with arguments which I reject, and which I consider largely irrelevant. In any event—
1. Mr. Baldwin’s emphasis on the language of certain States’ ratifications of the Constitution
misses the point. That Delaware, Pennsylvania, Connecticut, and Massachusetts—or every
State, for that matter—explicitly “assented to” the Constitution in their ratifications adds
nothing to their explicit use of the term “ratified” or “ratify” contained in the same
documents. Indeed, the extra language could rightly be construed to be without any effect,
and mere surplusage, insofar as the Constitution itself sought only the States’
“Ratification[s]”. Article VII. In any event, when those States “assented to” the Constitution,
they “assented to” its terms as they were written, not to some other, unstated terms.
2. In a similarly confusing vein, Mr. Baldwin suggests that the use by Pennsylvania,
Connecticut, and Massachusetts of the phrase “Constitution for the United States of America”
is somehow significant. I doubt it. The Constitution employs the term “the United States of
America” to refer to the new political entity it created. In contradistinction to this, it uses the
terms “State”, “States”, and “the several States” to refer to the individual States that pre-
existed the United States of America. So, of course these States ratified the Constitution “for
the United States of America”. They certainly did not ratify the Constitution for themselves
individually. Instead, they retained their own State constitutions (or in the case of Rhode
Island her original charter).
3. Mr. Baldwin then quotes Founding Father Roger Sherman as stating that “[t]his
Constitution does not attempt to coerce Sovereign bodies, States, in their political capacity”. I
have no idea exactly what Sherman had in mind by that statement. But if he meant that the
Constitution does not take away from the States certain of their pre-existent sovereign
powers, he obviously did not read Article I, § 10 of the document, which most assuredly does
“coerce Sovereign bodies, States, in their political capacity” to the extent of the disabilities it
imposes on them. (Inasmuch as Sherman doubtlessly did read the Constitution, I must
conclude that Mr. Baldwin is misreading Sherman.) Or does Mr. Baldwin contend that, from
the moment of their ratifications and even unto today the States could and still can simply
disregard those disabilities ad libitum, as one aspect of their supposed “right to secede”, and
that the General Government could and can do nothing about such (mis)behavior? If so, for
example, can the States today “enter into any Treaty, Alliance, or Confederation”, or “coin
Money”, or “emit Bills of Credit” (that is, paper currency)? If not, why not? After all, these are
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among the powers of independent, sovereign bodies-politic that the States exercised at one
time.
4. Mr. Baldwin complains that “[i]f States may not nullify, resist or in any way contradict the
federal government except through the US S Ct or alternatively through three-fourth of the
States” then Sherman “advocated a very erroneous and even fraudulent proposition to his
people”. But who contends that the States may not “resist or in any way contradict the federal
government except through the US S Ct or alternatively through three-fourth of the States”?
Not I. If Mr. Baldwin means by “nullify” that a State can simply refuse to recognize (say) a
statute passed by Congress that conforms in every way to constitutional requirements, then I
certainly do deny such State authority. And so does the Constitution. Article VI, cl. 2. On the
other hand, a State surely can refuse to recognize a purported “statute” enacted by Congress,
or action by the President, or opinion of the Supreme Court that does not conform to the
Constitution. Indeed, her officials must do so in fulfillment of their “Oath[s] or
Affirmation[s], to support th[e] Constitution”. Article VI, cl. 3. Such a refusal, though, I
should term “interposition”, rather than “nullification”, because an unconstitutional “statute”,
action, or opinion is null and void even without any State’s so declaring. A right and power of
“interposition” does not imply a right and power of “secession”, however. Quite the contrary:
“Interposition” is State action within the Union for the purpose of enforcing the Constitution;
whereas “secession” is State action designed to take the State outside of the Union for the
purpose of ending the application of the Constitution to that State. Self-evidently, contrary to
Mr. Baldwin’s assertion, these two diametrically opposed courses of action do not—indeed,
cannot possibly in the light of reason—proceed “[u]pon the same basis”, legally or logically.
(5) Mr. Baldwin’s invocation of Virginia’s ratification is particularly telling, albeit not in a way
congenial to his thesis. As he quotes it,
the powers granted under the Constitution, being derived from the people of the United
States, may be resumed by them, whensoever the same shall be perverted to their injury or
oppression, and that every power not granted thereby remains with them, and at their will[.]
Plainly, in this passage Virginia was not referring to “the people” of Virginia alone, or to “the
people” of any particular State alone, but (as she explicitly recited) to “the people of the
United States” as a whole. And so for the words “them” and “their”. Virginia’s concern was not
to secure a “right to secede” on the part of herself or any other single State, but to express her
belief that “the people of the United States” as a whole had not surrendered, through the
Constitution, their authority in some manner to “resume[ ]” all of the powers of government
that they had delegated to the General Government. And in this, of course, Virginia was quite
correct. See, e.g., Article V. Thus, Mr. Baldwin is obviously incorrect when he (mis)interprets
this passage as claiming an authority in a single State to “recall those powers * * * with or
without any other state’s consent”. Nothing in this passage applies to a single State alone.
Even less defensible is his conclusion that, “[t]o deny this right, authority and power of a state
to unmake the constitution that it alone formed for its body-politic is one of the most
egregious and unconscionable acts that could be done against a state”. For Virginia did not
claim that “a State” could “unmake the constitution” unilaterally, because she did not claim
that she, or any other State, “alone formed [the Constitution] for [her] body-politic”. Virginia
knew full well, and plainly stated, that all of the States—in the persons of “the people of the
United States”—formed the Constitution, just as its Preamble attests.
Page 13 of 42
(6) Finally, Mr. Baldwin argues that the States
were not acting as one body-politic with the other states. The US Constitution confirms this
by requiring only 9 of the 13 states to ratify. If “one nation” existed, why did Congress allow
four of the states to abandon the union at that time? After all, the Articles of Confederation
expressly stated that it was “perpetual,” yet four states were allowed to secede by not rejoining
the union? This contradicts the assertion (made by Lincoln and other unionists) that the
states were never sovereign and independent. This is pure nonsense. Indeed, the remaining
four states could act as their desired independently of all other states, because each state
acted for itself as a sovereign state.
Now, I refuse to assume any responsibility for what “Lincoln and other unionists” may have
said. But the Preamble to the Constitution does refer to one of its purposes as being “to form a
more perfect Union”, so obviously a “Union” already did exist before the Constitution was
ratified. The Articles of Confederation, which established this earlier Union, did call it
“perpetual”; but the Articles also allowed for that Union’s dissolution upon the action of all of
the States’ legislatures. See Article XIII. The Constitution was ratified, however, not by the
States’ legislatures, but by State “Conventions”, which exercised more power than did
legislatures—and had to do so, inasmuch as the Constitution withdrew from the States several
of their sovereign powers. So, it was certainly possible for all of the States to remain
technically bound by the Articles of Confederation, and within its Union, even while some of
them were ratifying the Constitution and thereby seeking “to form a more perfect Union”.
That is, throughout the process, it was certainly possible that none of the States was ever
outside of the original Union. Of course, after all of the States ratified the Constitution, the
Articles of Confederation (and the Union it created) must simply have dissolved, even without
explicit action by the several States’ legislatures, because the Articles’ provisions and the
provisions of the Constitutional were mutually incompatible, and the Constitution’s
provisions were legally superior to those of the Articles, having been enacted by the States’
“Conventions”, not simply their legislatures. Thus, it is perfectly plausible to conclude that no
State ever “seceded” from the Union established by the Articles; rather, that Union simply
disappeared by the implicit operation of the Constitution. To be sure, if only nine States had
ratified the Constitution, and four States had held fast to the Articles and demanded that the
other nine do so as well under Article XIII, an interesting legal problem would have arisen,
because of the Articles’ requirement of unanimity among the States for any change in the
Articles’ terms. But because that split did not occur, we shall never know how the Founders
would have resolved it.
(7) In sum, Mr. Baldwin could be correct in his premises that: (i) the States were independent
and sovereign entities before they formed their Unions in the Articles of Confederation and
then the Constitution; and (ii) the States as bodies-politic “assented” to the Constitution “for
the United States of America”. But neither nor both of those premises compels, or even
supports, his conclusion that, after having formed the Articles or the Constitution, each of the
States still enjoyed an unilateral “right to secede” from either of those “compacts” at her own
discretion, and without the participation of any other State in the process.
Certainly, independent and sovereign entities could have agreed as bodies-politic mutually to
limit their independence and sovereignty by renouncing, explicitly or implicitly, any
purported “right to secede” from a “compact” among themselves, as part of their “ratification
Page 14 of 42
of” or “assent to” such a “compact”. And the only way anyone can determine whether they
did so is to examine the terms of their “compact”.
PART 5
Timothy Baldwin’s “A CONCURRING OPINION FOR SECESSION (Part 5)” continues his
argument that the Constitution is a “compact” among the States. Unfortunately, this point,
even if proven, does not compel the conclusion that therefore the Constitution provides for,
allows, or is subject to legitimate “secession” by any of the States. A “compact”, after all, is
nothing more than a contract or like agreement between at least two parties. Denoting an
arrangement a “compact” tells one nothing even about the agreement’s form, let alone about
its substance. For instance, is the Constitution’s separation of powers among three co-equal
branches of the General Government a necessary product of its being a “compact”, such that it
could not have been otherwise? Of course not. Or is the States’ surrender of various of their
sovereign powers in Article I, § 10 a necessary product of the Constitution’s nature as a
“compact”? Of course not. Could the States have entered into a “compact” that explicitly or
implicitly precluded “secession” entirely, or that allowed “secession” only according to some
particular procedure? Of course they could have. On the other side, if the Constitution were
not a “compact” but (in Mr. Baldwin’s words) “an independent government formed by one
people/body-politic”, could it nonetheless have allowed for “secession” under some
situations? Of course it could have. So, the question is not whether the Constitution can be
denoted a “compact”, but whether (whatever it may be called) it provides for or is legitimately
subject to “secession” or not. Thus, it is essentially useless to review the statements of various
Founding Fathers and others as to whether the Constitution is some form of “compact”,
because that conclusion, by itself alone, cannot answer the further question as to the
propriety of “secession”.
Nonetheless, consideration of some of the statements that Mr. Baldwin lays out would be
instructive—
1. Mr. Baldwin quotes James Madison as writing that “[e]ach State, in ratifying the
constitution, is considered as a sovereign body, independent of all others, and only to be
bound by its own voluntary act”. Well, then, even if the Constitution is a “compact” among
previously fully “sovereign” and “independent” States, according to Madison each of those
very States is, after entering into the “compact”, “to be bound by its own voluntary act”.
“Bound”, one must conclude, means “obliged”, “compelled”, or “required” to conform one’s
behavior in some manner to an ascertainable standard of conduct. But is a State that can
“secede” at any time by her own unilateral decision from the “compact” formed by her own
“voluntary act” in any way “bound” to that “compact” by that act?
2. Mr. Baldwin also quotes Madison, in relation to the Supreme Court, as writing that “[s]ome
such tribunal is clearly essential to prevent an appeal to the sword [by the States] and a
dissolution of the compact”. But why, in the absence of this “tribunal”, would the States ever
need “an appeal to the sword” over matters in controversy amongst them, if (according to Mr.
Baldwin’s theory) each of them can simply resort to peaceful “secession” on her own
initiative, and none of the others can rightfully complain? If Mr. Baldwin is correct, the
Supreme Court is supererogatory, and Madison’s fear chimerical. But if Madison is correct,
then Mr. Baldwin must be wrong.
Page 15 of 42
3. Mr. Baldwin further quotes Madison as describing the Constitution “less as absolutely new,
than as the expansion of principles which are found in the Articles of Confederation”. Then,
Mr. Baldwin adds with great emphasis, “Observe: the US Constitution expands the principles
of the Articles of Confederation--NOT contradicts them!” With which conclusion I concur:
The Articles provided for a “Union”; and the Constitution provides for “a more perfect
Union”. The Articles limited the States’ ability to change the terms of the Union, which the
Articles described as “perpetual”. Article XIII. And although the Constitution does not
describe its “more perfect Union” as “perpetual”, it also limits the ability of the States to
change the terms of their “compact”. Article V. (One must, of course, conclude that, if the
original “Union” under the Articles was to be “perpetual”, “a more perfect Union” under the
Constitution must be intended to be of no shorter duration.) Where, though, in these parallels
does one find any confirmation of Mr. Baldwin’s theory of “secession”?
4. Mr. Baldwin then asserts that “the men attending the constitutional convention
acknowledged that the US Constitution would preserve a confederacy form of government,
whereby the states retained sovereignty of Nations, just as they did under the Articles of
Confederation”. But no one who actually consults either the Articles or the Constitution can
possibly conclude that “the states retained [the full] sovereignty of Nations” under those
“compacts”. To the contrary: The States transferred many of their original sovereign powers
to Congress (under the Articles) or to the General Government (under the Constitution),
leaving the States with only partial and incomplete sovereignty, and to some degree
dependent upon Congress or the General Government for the performance of those powers of
sovereignty that they (the States) surrendered. So if, as Mr. Baldwin urges, the arrangements
under the Articles and the Constitution must be denoted “a confederacy” or “a confederate
republic”, then it follows as the night the day from those documents that “a confederacy” or “a
confederate republic” does not require that each member-state should retain her full
sovereignty and independence. And if some sovereignty can be surrendered, then the
supposed sovereign power of “secession” can in principle be surrendered—the existence of
which surrender depends, not upon the mere name attached to the “compact”, but upon its
specific terms.
5. Mr. Baldwin then quotes Emer de Vattel for the proposition that
[S]everal sovereign and independent states may unite themselves together by a perpetual
confederacy, without ceasing to be, each individually, a perfect state. They will constitute a
federal republic: their joint deliberations will not impair the sovereignty of each member,
though they may, in certain respects, put some restraint on the exercise of it, in virtue of
voluntary engagements. A person does not cease to be free and independent, when he is
obliged to fulfill the engagements which he has voluntarily contracted.
Well, that frames the questions, does it not? Namely, (i) whether in ratifying the Constitution,
the States, “in certain respects, put some restraint on the exercise of [their sovereignty], in
virtue of [their] voluntary engagements”; and therefore, although still in some sense “free and
independent”, are nonetheless “obliged to fulfill engagements into which [they have]
voluntarily contracted”. And (ii) whether one of those “certain respects” is “secession”. In
framing these questions, though, Vattel did not answer them. But he surely taught that merely
calling the arrangement under consideration a “confederacy” does not answer them, either.
Page 16 of 42
6. Mr. Baldwin then contends that Daniel Webster “changed his tune completely” regarding
“secession”. From the evidence presented, though, I doubt it. Even assuming for purposes of
argument that Webster did “change[ ] his tune”, so what? That would prove no more than
that at least part of the time he had been wrong. The question would nonetheless remain, “At
which time was he right?” It certainly does not follow with apodictic certitude that, because he
changed his mind, his earlier opinion was incorrect. Temporal sequence and intellectual
acumen do not necessary go hand in hand. (Also, as Mr. Baldwin knows perfectly well, one
can never confidently extrapolate a lawyer’s personal beliefs from some argument he may
have made to a court while trying to win a case for his client.)
Mr. Baldwin also quotes Webster as saying that “[a] bargain cannot be broken on one side
and still bind the other side”. Again, I am not sure what ideas Webster may have entertained
in the recesses of his mind on that occasion. But, typically, when one party breaches a
contract, the aggrieved party does not simply shrug his shoulders and walk away, but instead
attempts to enforce the contract either through litigation or by direct action. (And, of course,
when he attempts to enforce the contract he may not himself breach it.) So, if one State or
group of States violated the “compact” of the Constitution, the normal remedy for the
aggrieved States would be to remain in the Union and seek enforcement of the Constitution
against the misbehaving State or States through whatever tribunal and with whatever
remedies the Constitution provides, not to “secede” from it.
7. Finally, Mr. Baldwin asks
what is the effect of the union being a federal compact assented to by the sovereign states?
The effect is what the unionists deny: that each state has the right to judge for itself whether
the compact has been breached and what remedies it will institute and seek, namely,
secession.
Yet the Constitution’s being “a federal compact” does not, by itself alone, necessarily entail
any of the “effect[s]” that Mr. Baldwin lists. Rather, whether any of those “effect[s]” exists
must depend entirely upon the particular terms of the Constitution, not upon the mere name
that can be attached to that document. It may be that each State initially has “the right to
judge for itself whether the compact has been breached”—for the aggrieved party usually
notices the problem first of all, whether the problem arises under a “compact” or some other
arrangement. But the aggrieved party alone generally does not have the final say with
respect to whether an actual breach has occurred or to what remedy for a proven breach it
may be entitled. Even an arguably aggrieved party cannot be licensed to be a judge in its own
case.
And this is absolutely true when the “compact” itself specifies a tribunal to hear the case and
provide appropriate remedies—which Mr. Baldwin himself, quoting Madison, tells us the
Constitution does, so as “to prevent an appeal to the sword and a dissolution of the compact”
(as described above). Therefore, “secession” will be an appropriate remedy for violations of
the Constitution only if the Constitution provides for it, and then only if the tribunal the
Constitution designates to hear the case determines as much. “Secession” will not be an
appropriate remedy in any eventuality simply because the Constitution can be called a
“compact”.
Page 17 of 42
PART 6
Timothy Baldwin’s “A CONCURRING OPINION FOR SECESSION (Part 6)” raises a new
issue as to which both he and I completely agree: namely, that the Supreme Court of the
United States is not the sole and final judge of the constitutionality of a State’s resistance to
usurpation and tyranny on the part of rogue public officials in the General Government. So,
“debating” this issue hardly seems worth an expenditure of verbal electrons. Nonetheless, Mr.
Baldwin does make a few assertions on this general subject, as well as on various others, that
warrant scrutiny at this juncture.
1. Mr. Baldwin writes with some heated sarcasm that
[t]o say that a state must file suit in the US S CT to determine whether or not it has the right
to secede is comical (from an outcome perspective) and meritless (from a historical,
constitutional and principle perspective). It puts the sovereignty of states on the level of an
individual, when the two are not even compatible. It puts the power of the court to hear and
rule on individual cases above what the sovereignty of an entire body-politic can do through
its independent political system.
If, when he derides the idea as “comical (from an outcome perspective)”, he means that he
would expect the Supreme Court to rule against a State’s supposed “right to secede”, he
obviously fears that the arguments he is marshaling in his series of commentaries would have
little to no persuasive power in the courtroom. (Of course, that may be because he is raising
the wrong arguments. For, if he argued, as I should, that States can “secede” through
amendment of the Constitution under Article V, I could not imagine that any Justice of the
Supreme Court would disagree. Oh, well, maybe one or two...) In any event, it is no argument
against the jurisdiction of a court that it might rule against a litigant because he can present
nothing but a poor case. On the other hand, Mr. Baldwin may be suggesting that the Supreme
Court (or at least its constituent Justices in recent days) would rule against the
constitutionality of “secession” (other than through Article V) on some hokey or even
fraudulent basis, and be sustained in that misbehavior by the other two Branches of the
General Government. To be sure, this is a possibility which, could it be proven, would justify
the people of the aggrieved State or States in “throw[ing] off such Government”, under the
principles of the Declaration of Independence. One cannot know, however, whether that dire
situation would ever obtain until the Supreme Court had been offered the opportunity to rule
correctly on the issue, and had refused to do so.
If Mr. Baldwin means that the idea of testing the constitutional of “secession” in the Supreme
Court is “meritless (from a historical * * * perspective)”, because there is no historical
example of States’ litigating against each other in that venue, he is wrong in the general case.
For many examples of such litigation do exist. True enough, in the specific field of “secession”
no such case exists. But this is doubtlessly because, when last “secession” was a major
national issue, the people who took that extreme step were so headstrong, reckless, and
utterly heedless of the disastrous consequences of their actions that they refused even to
attempt the peaceful course of litigation before turning to arms (and then foolishly launched a
battle of attrition they were unprepared to win)—notwithstanding that the Supreme Court in
their day would have been much more sympathetic to their contentions, and far less deadly to
their supporters, than were Generals Sherman and Sheridan just a few years later.
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If Mr. Baldwin persists in decrying the idea of litigating “secession” as “meritless (from a * * *
constitutional * * * perspective)”, he merely exposes his own unwillingness to read the
Constitution. For the Constitution expressly states that “[t]he judicial Power [of the United
States] shall extend * * * to Controversies between two or more States”, and that “[i]n all
Cases * * * in which a State shall be a Party, the supreme Court shall have original
Jurisdiction”. Moreover, “all Cases * * * in which a State shall be a Party” would include “all
Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their Authority” “in which a State shall be a
Party”. Article III, § 2, cls. 1 and 2. Self-evidently, then, a “Case[ ]” or “Controvers[y]” between
two or more States that raised the question of the constitutionality of “secession” would fall
squarely under “[t]he judicial Power [of the United States]” and would be properly brought
within “the original Jurisdiction of the supreme Court”. To date, such a “Case[ ]” or
“Controvers[y]” has not arisen. But, pace Mr. Baldwin, the Constitution in so many words
says that it can.
If Mr. Baldwin means that the idea of testing the constitutionality of “secession” in the
Supreme Court is “meritless (from a * * * principle perspective)”, he is himself being
unprincipled and imprudent, because a State should exhaust all plausible legal remedies of a
non-confrontational nature before taking a step as serious as “secession”.
Finally, Mr. Baldwin’s complaint that the idea of testing the constitutionality of “secession” in
the Supreme Court “puts the sovereignty of states on the level of an individual, when the two
are not even compatible” is simply beside the point. The Constitution allows for such
litigation. And if, in so doing, it “puts the sovereignty of states on the level of an individual”, it
does so as the result of the agreement as to that particular on the part of every State that has
ratified the constitutional “compact”—proving that, whatever Mr. Baldwin may imagine, the
States themselves have never believe that “the sovereignty of states” could not be put
judicially “on the level of an individual” where fundamental constitutional issues were at
stake. Moreover, the idea of a “test case” on “secession” does not “put[ ] the power of the
[Supreme C]ourt to hear and rule on individual cases above what the sovereignty of an entire
body-politic can do through its independent political system” in some illegitimate or unfair
fashion, because in ratifying the Constitution the States all agreed to this judicial jurisdiction
and these judicial procedures. So the States themselves having delegated these powers to the
Court, in good faith they cannot now disregard their own grant (in lawyers’ jargon, they are
“estopped” from challenging it).
2. Mr. Baldwin next adverts to “a fundamental principle expressed in the tenth amendment:
whatever powers the states did not delegate, they reserved. Very clearly from the text, the
state never gave up the power to secede in the constitution.” Really? Well, yes, really—because
through an amendment enacted pursuant to Article V of the Constitution a State may
“secede”. But otherwise? That is somewhat more problematical.
The Tenth Amendment provides that “[t]he 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”. Unfortunately, this tells us nothing about any “powers” in particular, whether
related to “secession” or anything else. For that information, we must look elsewhere.
Mr. Baldwin has expended a massive cloud of verbal electrons asserting that the Constitution
is a “compact” among the States—so let us see where that leads him on this score. In Part 5 of
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his series, Mr. Baldwin quoted with approval Vattel’s comment (with which I agree) that “[a]
person does not cease to be free and independent, when he is obliged to fulfill engagements
which he has voluntarily contracted”. Now, “compacts” or “contracts” are considered
obligatory even when they do not contain a provision in which the contracting parties
renounce any supposed “right” to “secede” from the agreements. Or, a “right” to “secede”
from a “compact” or “contract” is never assumed to exist simply because the denial of that
“right” is not explicitly set out in the “compact” or “contract”. Indeed, the mere agreement of a
party to a “compact” or “contract”, without more, is taken as that party’s complete and
permanent renunciation of any supposed “right” to “secede” from the terms of the agreement.
And a party’s later assertion of a supposed unstated but reserved “right” to “secede” from
“engagements which he has voluntarily contracted” is treated as an unlawful “breach” of the
“compact” or “contract”, which entitles the other parties to the “compact” or “contract” to
invoke some remedy for enforcing the agreement against the party violating it.
So, on these grounds, the power legitimately to “secede” from the Constitution was (in the
words of the Tenth Amendment) originally “prohibited by [the Constitution] to the States” in
Article VII, which provides that “[t]he Ratification of the Conventions of nine States, shall be
sufficient for the Establishment of this Constitution between the States so ratifying the
Same”—and subsequently has been prohibited to each and every other State as she herself
ratified the Constitution and joined the Union. For each State’s “Ratification” perfected that
State’s “oblig[ation] to fulfill [the] engagement[ ] which [s]he ha[d] voluntarily contracted”.
Implicit in that obligation is a renunciation of a “right” to “secede” from that obligation, or
else the obligation would be other than an obligation and the “compact” other than a
“compact”.
This obligation is reinforced by the mandates that: (i) “[t]his Constitution, and the Laws of
the United States which shall be made in Pursuance thereof * * * shall be the supreme Law of
the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution
and Laws of any State to the Contrary notwithstanding”; and (ii) “the Members of the several
State Legislatures, and all executive and judicial Officers * * * of the several States, shall be
bound by Oath or Affirmation, to support this Constitution”. Article VI, cls. 2 and 3. Plainly,
any purported “secession” by a State would require some kind of trumped-up State “law”—
such as an “ordinance of secession”, and then probably a new State “constitution”—to support
it. But any such “law” would be unconstitutional ab initio as in violation of “the supreme Law
of the Land”; and any attempt by any rogue public official of the State to promote, enact, or
enforce any such “law” would violate his “Oath of Affirmation” of office, and thereby
constitute the crime of perjury or false swearing. So, inasmuch as no State “law” providing for
“secession” could be valid, and no public official of any State could act lawfully under color of
his office in support of “secession”, “secession” is constitutionally impossible. (Except, of
course, through the process of amendment of the Constitution in Article V, which is itself part
of “the supreme Law of the Land”.)
Furthermore, insofar as Article VII and the several States’ “Ratification[s]” of the Constitution
have resulted in a “compact” or “contract” among the States, no State may unilaterally
“secede”, because: (i) to do so would require her enactment of some purported State “law”
that would abolish her obligation under the constitutional “compact” or “contract”; but (ii)
Article I, § 10, cl. 1 provides that “[n]o State shall * * * pass any * * * Law impairing the
Obligations of Contracts”. As every student of constitutional law knows, this prohibition
reaches not only private “Contracts” but also a State’s “Contracts”. Ergo, the Constitution
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being a “compact” (according to Mr. Baldwin), “secession” (other than through a

constitutional amendment) must be unlawful under this clause of the Constitution, too.
Although I may be accused of bringing owls to Athens on this point, I might also rhetorically
query Mr. Baldwin as to why—if from the very beginning of the Constitution the States could
always “secede” ad libitum, and if this “right” of “secession” was (or should have been)
accepted at least implicitly by everyone who treated the Constitution as a “compact” or
“contract” among the States—anyone ever believed that the Bill of Rights was necessary. After
all, “secession” is the ultimate “Bill of Right” which encompasses every imaginable “State’s
right”.
3. Mr. Baldwin then dilates on the unexceptionable point that any attempt by the General
Government to encroach on the “reserved” powers of the States would amount to usurpation
and possibly tyranny. That is all true enough. And equally true is that the States never agreed
to strip themselves of their power to resist such usurpation or tyranny. The Second
Amendment made that clear, if the original Constitution’s incorporation of “the Militia of the
several States” into its federal system did not.
But a “right of resistance” under and for the purpose of enforcing the Constitution does not
include a “right of secession” to remove a State from the Constitution—although the latter
right can arise when the usurpation or tyranny is so severe and otherwise irremediable as to
justify a State’s direct action under the principles of the Declaration of Independence. That,
however, is not an everyday occurrence.
PART 7
Timothy Baldwin’s “A CONCURRING OPINION FOR SECESSION (Part 7)” raises a new
issue as to which both he and I completely agree: namely, that the Supreme Court of the
usurpation and tyranny on the part of rogue public officials in the General Government. I
have written several rather detailed and (I hope without being accused of self-promotion)
scholarly books and articles to such effect on this point. So, “debating” the issue hardly seems
worth an expenditure of verbal electrons. Nonetheless, Mr. Baldwin does make a few
assertions on this general subject, as well as on various others, that warrant scrutiny at this
juncture.
1. Mr. Baldwin asserts that
[s]overeignty is not a matter for a court. Moreover, the words “cases” and “controversies”
especially did not mean the matter of state sovereignty. “Cases in law and equity arising under
the Constitution” and “controversies” by definition do not mean the political powers
possessed by an independent body-politic regarding matters that only sovereigns can
determine.
In the first place, “sovereignty” is a matter for a court if the sovereign so declares. (In lawyers’
jargon, the sovereign may always waive “sovereign immunity”.) In America, the “sovereign” is
We the People. Assuming for purposes of argument the validity of Mr. Baldwin’s contention
that the Constitution is a “compact” among the States, it is beyond dispute that the People of
the several States, in formulating their mutual “compact”, could have done whatever they
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wanted to do with their own sovereignty, including submitting legal questions relating to the
States’ sovereign powers to a court established by them to act as their common judge. As the
Declaration of Independence made clear, “it is the Right of the People * * * 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” (emphasis
supplied). Who was then—or is today—to say the People nay? Mr. Baldwin invokes some
“definition” that precludes litigation in “Cases” and “Controversies” with respect to “political
powers”. But what “definition” is that? What does it say? What is its source? More to the
point, what is its legal authority? What unstated “definition” drawn from some unnamed
source outside of the Declaration of Independence and the Constitution can control the
People’s power to organizing a new government, or the construction of the Constitution, in
direct defiance of its explicit terms as handed down by the People themselves?
And not the Constitution alone on this score, either. For Mr. Baldwin seems not to have
noticed that a common judge for the States was not a new idea in America, first broached out
of the blue in Article III of the Constitution. No, indeed. The Articles of Confederation had
earlier provided that “[t]he united states in congress assembled shall * * * be the last resort on
appeal in all disputes and differences now subsisting or that hereafter may arise between two
or more states concerning boundary, jurisdiction or any other cause whatever”. Article IX, ¶
2. If the language “jurisdiction or any other cause whatever” is insufficient to embrace what
Mr. Baldwin calls “the political powers possessed by an independent body-politic”, one
wonders what language would be necessary.
But apparently Mr. Baldwin did not need to consult these examples from American history,
inasmuch as he concurs with the fundamental point they make: namely, when he writes that
“[p]olitical maxims of natural law confirm that states may retain the right to judge the
constitutionality of third party actions regarding their sovereignty, where they have not
granted such power to a third party court” (emphasis supplied). The only question, then, is
what did the People provide in the Constitution with respect to these matters?
Assuming that the States are “independent bodies-politic” originally invested with a plenitude
of “sovereignty”, the Constitution—through the mutual consent of the States themselves in
their “compact”—directly and adversely affects “State sovereignty” and the States’ “political
powers” in many ways. For example, Article I, Section 10, Clause 1 entirely strips the States of
several important sovereign powers. Article I, Section 10, Clauses 2 and 3 preclude the States
from exercising certain other sovereign powers “without the Consent of Congress”. Article VI,
Clause 2 goes even farther along that road, by declaring that “[t]his Constitution, and the
Laws of the United States which shall be made in Pursuance thereof, * * * 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” (emphasis
supplied). And all public officials in the States are “bound by Oath or Affirmation, to support
th[e] Constitution” in these particulars (as well as all others). Article VI, cl. 3. Thus, a mere
statute enacted by Congress “in Pursuance” of the Constitution can override (absolutely
nullify, if you will) even a State’s own constitution, and require all public officials in that State
to recognize and even effectuate that nullification. Inasmuch as a State’s constitution is
arguably the highest expression of her sovereignty, the States enjoy no sovereignty with
respect to all of those matters that come within the legislative competence of Congress. So,
given that the States agreed to this in their “compact”, what could or would have precluded
them from also agreeing to submit legal issues relating to their sovereign powers to the
Page 22 of 42
Supreme Court? Nothing. Because the Constitution says in Article III that such is exactly what
they did do. Indeed, matters under Article VI, Clause 2 relating to the supremacy of “Laws * *
* made in Pursuance [of the Constitution]” over the States’ own constitutions and laws have
often become the subjects of exercises of “the judicial Power [of the United States]” in “Cases,
in Law and Equity, arising under this Constitution”. Article III, § 2, cl. 1. There are hundreds
of such “Cases” in the collection of decisions of the Supreme Court known as the United
States Reports, beginning in the earliest days of the Republic. Were all of these exercises of
“the judicial Power” illegitimate (as Mr. Baldwin claims, “by definition”)? If not, then they
(along with Article VI itself) surely disprove Mr. Baldwin’s contention that “[s]ince Congress
cannot control state sovereignty through its laws, by necessity, the federal supreme court
cannot control state sovereignty through its judgments”.
Returning to the specific issue of “secession”, let us posit a situation not too difficult for first-
year law students in a “moot-court” class: The State of South Carolina plans to file suit against
all of the other States within the original jurisdiction of the Supreme Court, seeking a ruling
that she may “secede” from the Union on the basis of some theory that does not rely on Article
V. The Attorney General of South Carolina is requested to provide his professional opinion as
to whether such a suit is possible. He does so, as follows—First, he observes that “[i]n all
Cases * * * in which a State shall be a Party, the supreme Court shall have original
Jurisdiction”. Article III, § 2, cl. 2. He further observes that “[t]he judicial Power [of the
United States] shall extend to all Cases, in Law and Equity, arising under this Constitution”
and “to Controversies between two or more States”. Article III, § 2, cl. 1. He then observes
that, as to a State, “Cases” and “Controversies” can mean the same thing, because the
Constitution recognizes that there can be both “Cases * * * in which a State shall be a Party”
and “Controversies between two or more States” in which of necessity those States are
“Part[ies]”. He further observes that, because a State can be a “Party” in a “Case[ ]” in general,
she can be a “Party” in a “Case[ ], in Law and Equity, arising under this Constitution” in
particular. Finally, he concludes that, the question concerning “secession” which South
Carolina seeks to raise being one that “aris[es] under this Constitution”, the State’s suit is
valid; and because the suit involves States as “Part[ies]”, it may be prosecuted in the “original
Jurisdiction” of the Supreme Court. Query: If the Attorney General were brought before the
South Carolina Bar, could he be convicted of legal malpractice for giving this opinion? If not,
then at least the Attorney General’s position is arguable—not, as Mr. Baldwin would have to
contend, entirely without merit “by definition”.
2. Mr. Baldwin next argues “[t]hat the federal judiciary does not have power to hear cases in
law or equity where the state is sued in its sovereign capacity is confirmed by the eleventh
amendment: ‘The Judicial power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.’” I fear that, here, Mr. Baldwin
has hoisted himself with his own petard.
Why was the Eleventh Amendment enacted? Because the Supreme Court had earlier ruled
that, under the original Constitution, a State could be sued by “Citizens of another State”—
that is, that a State enjoyed no “sovereign immunity” from such suit. Chisholm v. Georgia, 2
U.S. (2 Dallas) 419 (1793). Revealingly, at that time the States accepted this construction of
the Constitution as correct, and requiring an actual amendment of the Constitution to change.
Thus, rather than proving Mr. Baldwin’s contention that “the federal judiciary” never had
“power to hear cases in law or equity where the state is sued in its sovereign capacity”, the
Page 23 of 42
Eleventh Amendment proves the very opposite. Moreover, the Eleventh Amendment
explicitly applies only to suits brought by “Citizens of another State, or by Citizens or Subjects
of any Foreign State”. It does not apply to suits brought by one State against another State.
Plainly, if before the Eleventh Amendment was ratified “the judicial Power” of the United
States extended even to suits brought by individuals against States, it certainly extended to
suits brought by States against States, inasmuch as, unlike the former situation in which the
parties are of unequal status, in the latter situation the parties are of equal status as
“sovereigns”—and not only that, but as “sovereigns” who themselves had entered into a
mutual “compact” to submit their disputes with one another to “the judicial Power” of the
Supreme Court. Many “Cases” illustrate this point. For example, New Jersey v. New York, 30
U.S. (5 Peters) 284 (1831); Rhode Island v. Massachusetts, 37 U.S. (12 Peters) 657 (1838);
South Dakota v. North Carolina, 192 U.S. 286 (1904); Kansas v. Colorado, 206 U.S. 46
(1907); Virginia v. West Virginia, 220 U.S. 1 (1911); Kentucky v. Indiana, 281 U.S. 163
(1930); Pennsylvania v. West Virginia, 262 U.S. 553 (1923); New Jersey v. New York, 283
U.S. 336 (1931).
Rhode Island v. Massachusetts is particularly pertinent, in that the Court in that case
explicitly rejected Mr. Baldwin’s argument that, because the Constitution does not extend
“the judicial Power” to all “Controversies” (as it does with respect to “Cases”) therefore some
“Controversies” may be excluded from the reach of that power. 37 U.S. (12 Peters) at 721.
Thus, Mr. Baldwin is plainly wrong to conclude that “[t]his omission [of the word ‘all’ with
respect to ‘Controversies’] shows that the states did not concede to making the supreme court
the ‘common judge’ over matters involving their sovereignty”. The issue was raised in a case
involving two States as parties, decided adversely to Mr. Baldwin’s view, and never raised
again, although numerous cases in which one State sued another came to the Supreme Court.
3. Mr. Baldwin complains that “[e]ven if the US S CT ruled that Congress’ power to do this or
that encroached upon state sovereignty, what power does this give to the States? It gives no
power at all.” Actually, it gives the power of a legal determination which, one would hope,
other public officials in the General Government would feel obliged to follow, in fulfillment of
their “Oath[s] or Affirmation[s], to support th[e] Constitution”. Article VI, cl. 3. Certainly,
having a legal determination in one’s favor is better than having no legal determination at all.
True enough, an opinion of the Supreme Court (as Mr. Baldwin writes) “has no force or
compulsion attached. Only executives can carry out laws.” And if rogue officials in the
Executive Branch of the General Government, as well as rogue Congressmen, refused to
implement the Supreme Court’s decision in favor of the States, then the States themselves
would have to turn to direct action ex necessitate. That action, however, would be directed
towards enforcing the Court’s decision within and for vindication of the Constitution. It
would not be an exercise in “secession”, or even in “interposition” or “nullification”.
4. Mr. Baldwin then argues that,
[e]ven assuming that the US S CT attempted to maintain the lines of sovereignty, this does
not address cases where it is not possible to make specific accusations against the federal
government’s encroachments. Are individual states left to suffer until three fourths of the
states amend the constitution? This is nonsense. The states can do what our founders did in
the declaration of independence, using their inductive and deductive reasoning regarding the
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federal government’s intent “to reduce [us] under absolute despotism.” This is the natural
right of every body-politic.
But if it were truly “not possible to make specific accusations against the federal government’s
encroachments”, how could one fairly claim that there were any “encroachments” at all? What
valid conclusions can follow from no evidence? In that event, what possible reason could exist
for seeking to amend the Constitution? And what justification in law, morality, or prudence
could possibly be cited for the extraordinary, extreme, and possibly disastrous step of
“secession”? Is this how Mr. Baldwin operated when he was (as his biography tells us) a
“Felony Prosecutor in the 1st District of Florida”—or was he always sure that he could make
“specific accusations”, supported by competent evidence beyond a reasonable doubt, against
those whom he prosecuted? Is it conceivable that, in answer to motions to dismiss
indictments for failures to allege the commission of a crime, he responded with nothing more
that “[t]his is nonsense”? And is the prosecution of a petty crime involving a single individual
as serious a matter as “secession”, which could throw a State or even the entire country into
armed conflict?
As I read the passage quoted immediately above, Mr. Baldwin asserts the astounding claim
that the Founding Fathers “seceded” from Great Britain without making “specific
accusations” against King George III and his ministers, and that on the basis of this
precedent the States may “secede” without “specific accusations” today. The Declaration of
Independence, though, compiled a long list of quite “specific accusations”—precisely for the
purpose of “prov[ing]” the King’s malfeasance by “let[ting] Facts be submitted to a candid
world”. The Founders did not concede that they were unable “to make specific accusations”
but that, invoking some “natural right of every body-politic”, they were nonetheless entitled to
“secede” from Great Britain and launch a long and sanguinary war that they came within an
ace of losing. Rather, they recognized that “a decent respect to the opinions of mankind
require[d] that they should declare the causes which impel[led] them to the separation”.
Under the principles of the Declaration of Independence, “secession” would be justified today
if a State could marshal sufficient evidence of usurpation and tyranny on the part of the
General Government (or, perhaps more properly under the “compact” theory of the
Constitution, on the part of three-fourths of the States through the General Government). But
Mr. Baldwin contends that “secession” is proper even if “it is not possible to make specific
accusations” against anyone. If, however, “specific accusations” cannot be had, because
evidence is lacking, then his claim that “secession” is in order is neither verifiable nor
falsifiable. That being so, his argument must be dismissed as unscientific (if not totally
nonrational).
5. Finally, Mr. Baldwin writes that “[p]erhaps there was a time for the use of the courts as the
most peaceful means of redress available. But at some point, prudence demands more than
begging for justice at the foot of the king and his agents.” There was a time? When was that?
When did any State ever attempt to “secede” through the procedures of Article V? When did
any State ever attempt to “secede” by bringing a “Case[ ], in Law [or] Equity, arising under
th[e] Constitution” in the “original Jurisdiction” of the Supreme Court. I am aware of no such
instance.
So, are we now to conclude that these alternatives can be disregarded precisely because they
have never been tried? Worse yet, are we to consider it prudent for a State to leap into the
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utter darkness of the abyss of “secession” simply to avoid “begging for justice at the foot of the
king and his agents”? Surely one must hear in this recommendation, not the counsel of
Prudence, but the voice of Pride—the selfsame Pride that, utterly heedless of Prudence, set in
train the wave of “secession” that eventually led to Sherman’s fiery march though Georgia and
the Carolinas, Sheridan’s devastation of the Shenandoah Valley, and a thousand other
destructive and deadly events.
One would hope that people trained in law could devise a better plan than that.
PART 8
argument, with the main point of which I am in full accord, that the Supreme Court of the
usurpation and tyranny on the part of rogue public officials in the General Government.
Nonetheless, again Mr. Baldwin makes some assertions that warrant separate comments.
1. Mr. Baldwin observes that “[i]t is curious to argue that the States are not sovereign,
independent states * * * when the US Constitution guarantees the right of the people to keep
and bear arms, the purpose being to secure a FREE STATE”. Well, I certainly have never
contended that “the States are not sovereign” to some degree. The question remains, though,
“To precisely what degree is that?” It is not impossible for a State to be “a free State” (as the
Second Amendment uses that term) yet be part of a federal system in which she has
surrendered (or, perhaps, “contributed” is more descriptive of the situation under the
Constitution) some of her pre-existing sovereignty and independence. The extent to which
such a contribution has taken place, of course, depends on the specific terms of the organic
law setting up the federal system—in America’s case, the Constitution.
As to the States’ original sovereignty over their Militia—which, of course, the Constitution
plainly recognizes, by describing them as “the Militia of the several States”, not “the Militia of
the United States”—some of that authority has been transferred to the General Government.
See Article I, § 8, cls. 15 and 16 and Article II, § 2, cl. 1. In these particulars, the States are not
“independent” of the General Government with respect to their Militia. Of course, this does
not mean that the States cannot, or should not, call upon their Militia to defend them from
usurpation and tyranny on the part of rogue officials of the General Government if such
action were absolutely necessary. And it does not mean that, if the States did call upon their
Militia for that purpose, they could not do so within the bounds of the Constitution, and for
the purpose of enforcing it—in particular, “execut[ing] tjhe Laws of the Union” and
“suppress[ing] Insurrections”—as opposed to outside of the Constitution in the course of
seeking to “secede”. That is, a State’s “right to secede” is not a necessary consequence of the
Second Amendment. To the contrary: The Second Amendment guarantees the people the
means to preserve their Constitution against all enemies, foreign and domestic.
Similarly, as Mr. Baldwin rightly says, the States need not “submit to unconstitutional laws
upheld by the US S CT even though the states, through their agents, swore to upheld the
Supreme Law of the Land to the contrary”. But although the States need not so submit, again
the question remains, “How should they resist?” Or, in the context of Mr. Baldwin’s main
concern, “Under what circumstances and pursuant to what procedures is ‘secession’ a
proper option for such resistance?”
Page 26 of 42
2. Mr. Baldwin asks
[w]hat assurance and protections do the[ States] 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 with unconstitutional laws perpetually?
Under the principles of the Declaration of Independence, the States need not “comply with
unconstitutional laws perpetually”. Nonetheless, the problem is to determine whether the
Supreme Court has “rule[d] unconstitutional what is actually constitutional, and whether
“three fourths of the states do not [intend to] enforce the constitution either”. How either of
these determinations is to be made without actually invoking the constitutional procedures
for making them remains a mystery to me. Perhaps, in the event, those procedures will prove
unavailing. At least, though, they will have been tried.
3. Mr. Baldwin rightly points out that “the federal supreme court was not given the power to *
* * 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”. But, if the Constitution
is a “compact” among the States (as Mr. Baldwin contends that it is), how can any State or
combination of States unilaterally claim “the power to destroy what [all] the states ratified”,
by “seceding” in a manner not plainly sanctioned by the Constitution? The making of a
“compact” (such as the Constitution) is, after all, an exercise of political sovereignty. Are we to
believe that all of the States exercised their political sovereignty for that purpose, with not
only serious domestic but also potentially grave international implications in their action, yet
left it to any single State to defeat the entire project at any time by “seceding” whenever she
felt like doing so?
4. Mr. Baldwin writes that “[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).” Only
closer inspection, though, Mr. Baldwin may recall that in Marbury Chief Justice John
Marshall defined “political questions” as questions in which a political department of the
government has lawful discretion to act as it may choose. So, simply assuming (as Mr.
Baldwin does) that a State has such discretion with respect to “secession” is not to apply
Marbury, but to beg the type of question which Marbury actually did address and answer.
5. Mr. Baldwin then asks
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 interested in the
opposing party to the ‘case,’ that is, the federal government? That is impossible and flawed.
If “[t]hat is * * * “flawed”, yet it is most assuredly not “impossible”, because the States
themselves set up this arrangement, and therefore waived any claims they might have had
against the Supreme Court on the grounds of supposed “bias”. Furthermore, one should
presume that, if the Justices of the Supreme Court were to honor their “Oath[s] or
Affirmation[s]” of office under Article VI, Clause 3, they would not skew their opinions on the
basis of “a vested interest in * * * the federal government”, or “a vested interest in” State
sovereignty, but instead would decide any case relating to “secession” in keeping with the true
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meaning of the Constitution. To be sure, the Justices might dishonor their “Oath[s] or
Affirmation[s]” and render fraudulent opinions—but, in that event, those opinions would be
void and of no legal effect on the States or anyone else.
6. Mr. Baldwin then argues that “[i]t has long been recognized that a courts’ power can no
more extend to matters than what the corresponding legislature can reach” and “[t]hus,
where Article 1, section 8 (the powers of Congress) do not concern determination of state
sovereignty, the parties to the compact, the nature of union and the powers of body-politic,
the federal courts can have no jurisdiction over the same under Article 3”. The problem with
this reasoning is that Article III (as I have explained in earlier commentaries) directly
contradicts it. Besides, Mr. Baldwin seems to be confused as to what constitutes “the
corresponding legislation” that grants jurisdiction to the Supreme Court over such matters. It
is not some statute of Congress. Neither does “secession” relate to some power of Congress
under Article I. Rather, it is the Constitution itself, enacted by the supreme human legislators
in America, We the People, that grants jurisdiction to the Court. And “secession” is a matter
of the legal relationship of a State to the Union, not of the relative priority of (say) State
legislation to Congressional legislation (which Article VI, Clause 2 addresses). Does Mr.
Baldwin really mean to contend that, if the Constitution grants such jurisdiction (as plainly it
does), nonetheless that grant is null and void because We the People could have no authority
to promulgate it? Is the supposed power of a body-politic to “secede” so plenary that the
body-politic itself cannot impose restrictions on its own exercise of that power as part of a
“compact” with other bodies-politic? And is Mr. Baldwin willing to accept the necessary
consequence of an affirmative answer to the last question—namely, that if the right to
“secede” can never be limited, then no BINDING “compact” among sovereign States is ever
possible, and therefore no actual LAW of nations is ever possible either, inasmuch as the
essence of all “law” is an obligation BINDING on the parties subject to it? I doubt that
someone as astute as he would adopt such conclusions—which suggests that he may wish to
modify his premises instead.
7. Mr. Baldwin complains that “[t]o say that only the federal supreme [court] can decide the
power of the states to secede concludes that Congress has the same power to prevent a state to
secede”. Now, I do not hold that “only” the Supreme Court “can decide the power of the states
to secede”. In extremis, under conditions that satisfy the principles of the Declaration of
Independence, the States themselves might have to assert that power in their own self-
defense, and could be justified in doing so. But I do believe that, where rogue public officials
attempt to involve their State in unconstitutional “secession”, not occurring under such
conditions, Congress, acting in the name of all the others States, surely does have the power—
and the duty, as well as the right—to prevent those officials from succeeding in their scheme.
First, in the case of a single State, assume for purposes of illustration that rogue public
officials were to enact an “ordinance of secession”. If this ordinance were unconstitutional on
(say) the basis of Article VII (as I have explained in an earlier commentary), then those
officials’ actions would amount to a violation of “the Laws of the Union”, an “Insurrection[ ]”,
and a “Rebellion”. Congress has the authority to enact legislation to deal with all of those
problems. See Article I, § 8, cl. 15 and § 9, cl. 2. If the “ordinance of secession” set off
domestic turmoil with the State, such that a legitimate State legislature could not convene,
Congress has the authority to deal with that, too. See Article IV, § 4. Second, in the case of two
or more States which purported to “secede” by entering into some new “confederacy”, the
formation of such a “confederacy” by itself would violate Article I, § 10, Clause 1 (“[n]o State
shall enter into any Treaty, Alliance, or Confederation”), or Article I, § 10, Clause 3 (“[n]o
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State shall, without the Consent of Congress, * * * enter into any Agreement or Compact with
another State”), or both—and in any event would amount to a violation of “the Laws of the
Union”, an “Insurrection[ ]”, and a “Rebellion”, as to each of which Congress enjoys the
authority to enact remedial legislation. See Article I, § 8, cl. 15 and § 9, cl. 2.
8. Finally, Mr. Baldwin argues that “[a]s understood by our founders, this grant of power [to
the federal judiciary to decide cases involving constitutional issues] in no way granted them
jurisdiction over the matter of state sovereignty, which is expressly reserved to the states
themselves in the tenth amendment”. The problem with this contention is that no “express”
reservation concerning “jurisdiction over the matter of state sovereignty” appears in the
Tenth Amendment. The Tenth Amendment tells us that “[t]he 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”—but, although this is an important statement of the principles
of federalism and subsidiarity, it does not tell us precisely what those “powers” are. Mr.
Baldwin assumes that one of those powers is the power of unilateral, discretionary State
“secession”. But, to prove this, he would have to prove that no power “delegated to the United
States” or “prohibited * * * to the States” negates the existence of such a power of
“secession”—and, as well, that the States’ mere ratification of the Constitution under Article
VII as a “compact” among themselves does not negate “secession”, except through the
exercise of the power of amendment for which the “compact” itself provides in Article V.
Appeals to what was supposedly “understood by our founders” as to these matters in various
of their writings are not particularly useful, because what was “understood by our founders”
as to tie actual organic law of our country they took care to write down in the Constitution—
which, along with the Declaration of Independence, is the highest competent evidence on the
subject. The Constitution itself—not what Madison, Hamilton, or anyone else among the
Founders may have said about the Constitution—determines what the Constitution means.
Those men, as distinguished as they were, could have been wrong on any particular point; or
their writings could be sufficient loose as to be subject to gross misinterpretation; or, in the
case of someone such as Hamilton, their words could sometimes have been penned more for
political effect than for legal accuracy.
The Constitution, in contrast, cannot be “wrong” in the sense that someone’s personal
opinion about it can be wrong. It is what it is. It says what it says. And it means what it says.
Our problem is to read it without putting on ideological spectacles that twist its words to
some predetermined meaning alien to the text. For part nine click below.
PART 9
argument, with the main point of which I remain in full accord, that the Supreme Court of the
usurpation and tyranny on the part of rogue public officials in the General Government.
Nonetheless, again Mr. Baldwin makes some assertions that deserve special consideration.
1. In support of a State’s right to “secede”, Mr. Baldwin asks
[b]y what means can the states guard against the federal government where the only method
of guarding is through amending the constitution, despite the fact that the constitution’s
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meaning and intent is not defective. Is the constitution to be amended upon each and every
federal encroachment?
One might ask in reply, are then States to “secede” “upon each and every federal
encroachment”? Are the champions of liberty to run away from their own government—for, as
Mr. Baldwin contends, the General Government is nothing but the creation of the States,
through their “compact”—at the first sign of serious trouble? Is “secession” the only remedy
for such abuses? If so, why? Is it the preferred remedy? If so, why? What about
“interposition” by the States, which if successful would maintain the Union intact? What
about, in the present situation of a collapsing Federal Reserve System, the introduction by the
States of an alternative economically sound and constitutional currency in their own
economies? That would not involve “secession”, either. What about revitalization of “the
Militia of the several States”, State by State? That would surely have a greater deterrent effect
upon rogue public officials in the Disgrace of Columbia than empty threats of “secession”.
Questions of this type must be answered before one can conclude that present circumstances
leave patriotic Americans with no alternative except to open Pandora’s Box in order to watch
“secession”—and Heaven knows what else as a consequence of “secession”—jump out.
2. The burden of most of Mr. Baldwin’s argument in Part 9, of his series is that individual
States must have some ultimate right of self-defense and self-preservation, including
“secession”, if the General Government—and, presumably, three-fourths of the States that
were to side with it in its oppression of the remaining one-fourth—become truly tyrannical
and utterly uncontrollable. With that one must agree; for such is the doctrine of the
Declaration of Independence, upon the principles of which all subsequent constitutions and
laws America depend Before that doctrine can be applied, however, the States seeking to
invoke it must “let Facts be submitted to a candid world” to the effect that they have taken
every other legal step within their power to avoid having to “abolish the forms [of
government] to which they are accustomed”, “to throw off such Government, and to provide
new Guards for their future security”. Mr. Baldwin’s argument is devoid of any list of such
steps that should be taken, or that could be taken, let alone that have been taken. Instead, he
jumps directly from the frying pan of “federal encroachments” into the fire of “secession”, as if
no possible alternatives were even imaginable, let alone possibly viable. In matters as serious
as these, though, one must temper enthusiasm with circumspection.
Mr. Baldwin may be on slippery ground when he advocates “resistance” through “secession”
by States that, up to now, have shown no proclivity to stand up against “federal
encroachments” in any significant way. Oh, I know about some States’ opposition to the
proposed National ID Card or to National Health Care, and various States’ “Tenth
Amendment Resolutions” that assert the principle of “State sovereignty”. These, however, are
little more than toothless paper tigers. For the two dire, unavoidable threats confronting this
country are (i) an economic catastrophe stemming from the imminent collapse of the Federal
Reserve System, and (ii) the imposition of a national para-military police state to stem the
massive social unrest that will arise out of that catastrophe. But, to my knowledge, no State
has even outlined a plan for “resistance”, involving “secession” or anything else, that meets
these dangers head-on.
I am sure that Mr. Baldwin will agree with me that all too many advocates of “secession” fail
to recognize that talk is cheap but action costly—that “secession” could never succeed, and no
circumspect individuals would ever risk participating in it, unless, in addition to working out
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a detailed plan, the “seceding” State had already prepared herself in numerous practical ways
for the intense political and economic conflict her “secession” would cause. (Not that there
would have to be an absolute certainty of success, but at least there could not be a certainty of
failure.)
So, on practical grounds, I must disagree with Mr. Baldwin when he argues that “where the
US S CT conspires (in principle and effect) with Congress and the President to deny the
people of the states their rights and sovereignty, the states are not bound to suffer at the
hands of a union that is enslaving them”. If “the people of the states” do not adequately plan
and prepare themselves to resist such oppression by all lawful means, they will have no choice
but to suffer. And much of this planning and preparation will have to occur before “secession”
could ever take place.
PART 10
Timothy Baldwin’s “A CONCURRING OPINION FOR SECESSION (Part 10)” introduces the
new argument that a State’s supposed “right to secede” from the Union does not depend upon
any procedures within the Constitution (such as the process for amendment in Article V), and
presumably does not depend on upon conditions being such that the principles of the
Declaration of Independence apply, either. Unfortunately, I cannot concur in these
contentions.
1. Mr. Baldwin correctly asserts that, after the Declaration of Independence, “[t]he states were
independent, sovereign and free and had the power to enter into compacts with each other, as
they did in the Articles of Confederation and the US Constitution”. However, he fails to
recognize an important consequence of the States’ status: namely, that, being “independent,
sovereign and free”, the States could also fashion such “compacts” as they wished, and
therefore could limit each participating State’s “right to secede” from their “compact” except
under certain specific conditions, or even exclude such a “right” entirely.
So, quite beside the point is his general statement that “[g]iven the status of these states as
independent and free states, they necessarily have the power to do what independent bodies-
politic have: the power to make (accede to) and unmake (secede from) constitutions”. Yes,
States have such powers, unless explicitly or implicitly they have surrendered or limited
them in their “constitutions”. And to determine whether this has happened in any particular
instance, one must look to the specific terms of the particular “constitution” in issue, not
simply generalize about “powers” that States may have unless they have relinquished or
waived them through “compact”.
2. Mr. Baldwin then claims that,
under the Articles of Confederation, the states retained all powers not expressly delegated to
the federal government, and it is clear that they did not delegate the power to secede, which
all sovereigns have. Its [that is, the Union’s]“perpetual” duration [under the Articles] had
nothing to do with the right and power to secede.
Now, first and foremost, “all sovereigns [do not] have” “the power to secede” from “compacts”
into which they freely enter and in which they agree not to “secede”, or agree to limit their
“right to secede”. So, the question is, “What did the Articles of Confederation—which
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constituted a “compact” among the original thirteen States—provide as to “secession”? Mr.

Baldwin contends that the relevant part of the Articles of Confederation, Article XIII, “had
nothing to do with the right and power to secede”. Really? How one can read the language of
Article XIII and come to that conclusion escapes me. Article XIII provided that
[e]very state shall abide by the determinations of the united states in congress assembled, on
all questions which by this confederation are submitted to them. And the Articles of this
confederation shall be inviolably observed by every state, and the union shall be perpetual;
nor shall any alteration at any time hereafter be made in any of them; unless such alteration
be agreed to in a congress of the united states, and be afterwards confirmed by the
legislatures of every state.
Taken literally (and no reason exists not to take it literally), this plainly meant that, to
terminate any State’s participation in the Articles—which necessarily would entail inter alia
that State’s refusing any longer to “inviolably observe[ ]” the Articles—each State had to agree
both collectively in Congress and individually through some separate legislative statement of
her own. Thus, the supposed unilateral “right” of a State to “secede” was expressly denied—
or, to use Mr. Baldwin’s language, the “power” of “secession” was transferred from each
individual State to Congress and the totality of the States, such that each individual State
retained no part of that power capable of being exercised by herself alone. If one can find a
surviving unilateral legal “right to secede” in or somehow recognized by the language in
Article XIII, he is more clever than I am at parsing legal texts. Moreover, precisely why
“sovereign” and “independent” States, in making this “compact” amongst themselves, could
not have limited their “right to secede” in exactly the manner in which Article XIII expressly
limited it, Mr. Baldwin does not tell us. His argument seems to reduce to the exhortation,
“Yes, it actually says that; but don’t believe it!” I should take that as good advice with respect
to statements emanating from today’s Congress. But I am less inclined to approach the
organic laws of this country, penned by the Founders, in such a spirit of disbelief.
3. Mr. Baldwin then argues that, “[b]y virtue of the US Constitution being drafted, proposed
and ratified, those states that assented to the US Constitution seceded from the old union
under the Articles of Confederation, despite its duration being perpetual”. There is, however,
another explanation for what happened: namely, that all of the original thirteen States
remained legally bound by the Articles of Confederation until the last of them had ratified the
Constitution. That is, none of them actually “seceded” from the Union under the Articles of
Confederation at all. Rather, they went forward in substantial compliance with the procedure
set out in Article XIII—namely,
(i) On 21 February 1787, the Congress operating under the Articles of Confederation resolved
that:
Whereas there is provision in the Articles of Confederation & perpetual Union for making
alterations therein by the assent of a Congress of the United States and of the legislatures of
the several States; and whereas experience hath evinced that there are defects in the present
Confederation, as a means to remedy which several of the States * * * by express instructions
to their delegates in Congress have suggested a convention for the purposes expressed in the
following resolution and such convention appearing to be the most probable mean of
establishing in these states a firm national government.
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Resolved that in the opinion of Congress it is expedient that * * * a Convention of delegates * *

* appointed by the several states be held * * * for the sole and express purpose of revising the
Articles of Confederation and reporting to Congress and the several legislatures such
alterations and provisions therein as shall when agreed to in Congress and confirmed by the
states render the federal constitution adequate to the exigencies of Government & the
preservation of the Union. [Documents Illustrative of the Formation of the Union of the
American States, House Document No. 398, 69th Congress, 1st Session (Washington, D.C.:
Government Printing Office, 1927), at 45-46.]
(ii) The Federal Convention of 1787 then determined that the best way of “revising the
Articles” was to substitute the Constitution for them.
(iii) From 1787 through 1790, the original thirteen States individually ratified the Constitution
(that is, the revision of the Articles). And,
(iv) When the last ratification (by Rhode Island) occurred, the Constitution finally superseded
the Articles by operation of law pursuant to a process in which Congress and all of the States
had concurred, just as the Articles of Confederation had required—and, more than that, in
which all of the States had participated through conventions, not simply through
determinations of their legislatures.
Why this is not the most, or at least a, plausible explanation of what happened, Mr. Baldwin
does not explain. Indeed, if more than one explanation is possible, this should be the
preferred one, because it does not impute illegality and bad faith, or stupidity, to the actions
of the Founding Fathers. Moreover, it is the very explanation that James Madison himself
provided (in more detail) in The Federalist No. 40 (which paper Mr. Baldwin quotes
approvingly in another context). In any event, this sequence of events undermines Mr.
Baldwin’s assertion that, “[i]f the states in fact waived all rights to secede from the union
under the Articles of Confederation, then the US Constitution is illegitimate and illegal, as not
having a basis in the compact among the states to dissolve the previous compact”.
On the other hand, if “the US Constitution is illegitimate and illegal, as not having a basis in
the compact among the states to dissolve the previous compact”, then are not the Articles of
Confederation (never having been legitimately superseded) still the “compact” among the
States? And, if so, must not any State seeking to “secede” proceed, if at all, pursuant to Article
XIII? For if “the US Constitution is illegitimate and illegal, as not having a basis in the
compact among the states to dissolve the previous compact”, then what Mr. Baldwin calls the
States’ “secession” from the Articles in order to ratify the Constitution was “illegitimate and
illegal”, too—indeed, it was the original “illegitimate and illegal” act in the whole “illegitimate
and illegal” process. Which takes the thread of the argument right back to Article XIII.
On this general line of discussion, Mr. Baldwin also invokes James Madison for the
proposition “that the states joining the union assented to the US Constitution (ergo, federal
compact), and the remaining states dissented, and neither the two can meet: they were
disjointed, despite the unanimous consent requirement of the Articles [of Confederation’s]
amendment clause and its perpetual duration”. But Madison’s comments on which Mr.
Baldwin relies prove nothing more than that Madison did not (for whatever reason) pay very
close attention to the legal implications of what was going on, because (i) on their own terms
the Articles of Confederation did not expire upon ratification by less than all of the original
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thirteen States of some other “compact”, and (ii) on its own terms the Constitution did not
claim that the Articles would be superseded when nine States ratified the Constitution, only
that such ratification would be “sufficient for the Establishment of th[e] Constitution between
the States so ratifying”. Article VII. Presumably, if the matter had ever come to a resolution
through litigation prior to 1790 (when Rhode Island finally ratified the Constitution), the
Constitution’s less-than-unanimous ratification clause might have been declared inoperative
in either the Supreme Court or in some State courts, until all thirteen States had finally
ratified the document. But inasmuch as this matter never came to an open dispute, we have
no idea of how the Founders would have resolved it.
4. Mr. Baldwin then offers an analogy to
what sovereigns have a right to do: make and unmake constitutions. This is very similar to the
laws regarding incorporation of a fictitious entity within a state. If one forms a corporation,
the incorporation’s by-laws will state the duration, which in most cases, will be “perpetual;”
but that most certainly does not mean the corporation cannot be dissolved—likewise with the
“perpetual” duration of a union.
But, as Mr. Baldwin knows, laws providing for incorporation do not license corporations,
once formed, simply to “dissolve” willy-nilly—rather, all such laws provide specific legal
procedures through which “dissolution” must take place, often with reports to be filed with
various governmental agencies, so as to protect the interests of shareholders, directors,
officers, employees, and outside creditors. So, if (according to Mr. Baldwin) a State’s “right to
secede” is analogous to a corporation’s “right to dissolve”, it cannot be exercised outside of
whatever specific legal procedures the State has agreed, through “compact”, to follow.
5. Mr. Baldwin next asserts that “if the right to secede was waived by the ‘perpetual’ duration
and a unanimous amendment requirement [in the Articles of Confederation], it most
certainly was reclaimed and reinstated by the US Constitution’s duration not being stated as
‘perpetual,’ by the secession from the Articles of Confederation, and by the reservation of
rights under the tenth amendment”. Unfortunately, his logic here is somewhat porous:
(a) The Preamble to the Constitution states as its very first goal “in Order to form a more
perfect Union”. Insofar as the Union under the Articles of Confederation was expressly
described as “perpetual”, how “a more perfect Union” would be less than “perpetual” defies
explanation. Also, as quoted above, the resolution of Congress authorizing the Federal
Convention aimed at “render[ing] the federal constitution adequate to the exigencies of
Government & the preservation of the Union”—by which, of course, Congress meant the
“perpetual” Union then established through the Articles.
(b) Mr. Baldwin’s theory of “the [States’] secession from the Articles of Confederation” has
already been discussed above.
(c) “[T]he reservation of rights under the tenth amendment” says nothing about “secession”
either in particular or even in general, and therefore by itself cannot override the effect of
Article VII in rendering the “compact” of the Constitution legally binding on all the States, or
deny that Article V provides a procedure (and therefore, in the absence of any other
alternative, the sole procedure) by which “secession” can be legally effected.
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6. Finally, Mr. Baldwin argues that
the (greater) ends ought to give way to the (lesser) means where there is more than one
interpretation to the matter. Well, if freedom is the greater end and union is the lesser means,
should not freedom prevail over union? Should not an interpretation be given to whatever
means protects freedom?
But is there “more than one interpretation to the matter”? The Preamble connects its goals
relevant here with the conjunctive: “in Order to form a more perfect Union * * * and secure
the Blessings of Liberty to ourselves and our Posterity”. Plainly, the sole plausible
interpretation of this language is that We the People presumed that both ends could be, and
would be, attained simultaneously and perpetually. So why should not an interpretation that
preserves both “Union” and “Liberty” be given to every provision in the Constitution? And,
more to the point, why should not actions be undertaken by every patriot to preserve both
“Union” and “Liberty” under and through the Constitution? Why, when freedom is threatened
by various usurpations on the part of rogue public officials, should people clamor for
“secession”, when they have taken no sufficient steps to render “secession” unnecessary, by
suppressing those usurpations and reconciling “Union” with “the Blessings of Liberty”? “Oh,
we can’t find a way to do it under the Constitution!” some “secessionists” say. Well, it is a poor
workman who blames his tools.
If one cannot find a way to make the Constitution function properly according to its express
provisions, why should he be presumed capable of finding a way to make “secession” work, or
of finding a way to ensure that a “seceding” State (with Heaven knows what sort of
“constitution”) will protect “the Blessings of Liberty” for her inhabitants? Indeed, why should
anyone presume that “secession” and “the Blessings of Liberty” would have anything
whatsoever to do with each other—particularly in the course of the political, economic, and
social crises that “secession” would occasion? Are Americans simply to take the hopeful word
of “secessionists” that “everything will turn out fine”? Is that how things turned out in 1865?
Surely that lesson from history merits close study.
PART 11
argument that a State’s supposed “right to secede” from the Union does not depend upon any
procedures within the Constitution (such as the process for amendment in Article V).
Although I have already addressed most of Mr. Baldwin’s contentions in earlier parts of my
response to his commentaries, his eleventh article does contain a few points worthy of
extended treatment.
1. Mr. Baldwin claims that “[n]ot one provision of the constitution delegates th[e] power of
secession to the federal government nor prohibits this right from the states”. Of course, “[n]ot
one provision of the constitution delegates th[e] power of secession to the federal
government”. After all, precisely how could “the federal government” “secede” from the
States? As to his second point, Mr. Baldwin adds that “regarding the right or lack thereof to
leave the union, the constitution is silent. So, which of the modes of enumeration, delegation,
or prohibition of sovereignty did the states use to waive their right to secede?” Mr. Baldwin
answers his question with “None”. But, in all of the commentaries he has posted, he has had
very little to say about Article V, and next to nothing about Article VI, Clauses 2 and 3, and
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Article VII, regarding “secession”; or about Article I, Section 10, Clauses 1 and 3, as they relate
to any of the States’ forming some new “confederacy” outside of the Constitution. So his
“None” rings somewhat hollow.
Mr. Baldwin contends that “the constitution provides for a way to amend, ratify, and add
new states, but it is utterly silent on secession”. The question, though, is whether provisions
to “amend” and “ratify” the Constitution can apply or relate to “secession” in fact (in the sense
of a State’s leaving the Union) even though they do not mention the very word “secession”.
The short answers are: (i) When States “ratify” a “compact”, as they did under Article VII,
they implicitly agree to be legally bound by it. After all, “ratification” means “[t]he adoption
by one, as binding upon himself, of an act done in such relations that he may claim it as done
for his benefit, although done under such circumstances as would not bind him except for his
subsequent assent”. Black’s Law Dictionary (St. Paul, Minnesota: West Publishing Co.,
Revised 4th Edition, 1968), at 1428 (emphasis supplied). A supposedly “retained” unilateral
“right to secede” ad libitum from a “compact” denies the existence of such a binding legal
obligation, and therefore cannot be assumed to survive the party’s ratification of the
“compact”—indeed, such a claimed “right” negates the efficacy of any purported ratification to
which it appertains. (ii) The power to “amend” the Constitution in Article V is limited in only
one way (“that no State, without its Consent, shall be deprived of its equal Suffrage in the
Senate”) and therefore in principle can apply to “secession” through an amendment to the
Constitution that a State voluntarily seeks.
Mr. Baldwin asks whether “you find it peculiar that the[ States] left out this provision [that is,
explicitly providing for ‘secession’] if the States in fact intended to bind themselves
‘perpetually’ and all others to remain in the union against their will”. I do not find it at all
peculiar. The purpose of the Constitution is to maintain the pre-existing Union among the
States, not to promote disunion (or even to suggest that disunion is possible, let alone to
emphasize how it can be effected). So of course the Constitution does not dilate on
“secession”, even to the degree that “secession” was addressed—and negatively, by the way—
in Article XIII of the Articles of Confederation. Who, in favor of forming “a more perfect
Union” among the States, would have entered into a “Union” that explicitly allowed, and by
allowing encouraged, “secession” by any member at any time for any reason upon the
unilateral decision of that member, when even the Articles of Confederation had not been that
liberal? Indeed, would that have been considered a “Union” at all?
2. Mr. Baldwin then points to certain “history lessons”. Elsewhere, I have discussed at length
the “history lesson” to be drawn from the Articles of Confederation. The “history lesson” Mr.
Baldwin finds in the constitution of the Confederate States of America passes over my head. I
am hardly surprised that officials of the Confederate States would have interpreted their
constitution as allowing unilateral “secession” (if that is what it did allow, the matter never
having been tested by one of the Confederate States actually trying to “secede” from their
confederation), because that is how they claimed to have interpreted the Constitution of the
United States. But why does Mr. Baldwin imagine that anyone else is obliged to accept those
officials’ interpretations of the Constitution of the United States? Because after illegally
“seceding” from the Union they nonetheless maintained that they were correct by writing a
constitution that parroted the phraseology of the Constitution of the United States, even when
half of the country repudiated their interpretation to the point of taking up arms against
them? Surely, if these Confederate statesmen “were some of the most highly-educated and
intelligent men alive” (and I for one shall not disparage them in that regard), they might have
Page 36 of 42
considered altering the language in the Confederate States’ constitution so as unequivocally to

support their position on “secession”, rather than stubbornly clinging to the language in the
Constitution of the United States in the vain hope that this would convince a doubting world
that they were right to “secede” in the first place. After all, as Emerson pointed out, “a foolish
consistency is the hobgoblin of little minds”. In any event, the great “history lesson” that the
Confederate States provides is, not that a “right to secede” exists, but that even “some of the
most highly-educated and intelligent men alive” can stumble into an unmitigated disaster
(and drag Heaven knows how many innocent people down with them) when they do not
properly prepare, physically as well as intellectually, for a course of action with potentially
dire consequences.
3. In a headnote, Mr. Baldwin states that “Article V [of the Constitution] Only Addresses the
Terms of the Compact, and Not the Parties of the Compact”. I have not been able to find any
text in Part 11 of his series that expands upon this issue. But inasmuch as Mr. Baldwin takes it
seriously, I feel constrained to point out that, in every “compact” or “contract”, as a practical
matter the parties are part and parcel of the terms. Indeed, the terms of a “compact” or
“contract” would be utterly meaningless without parties to which they related, and vice versa.
The Constitution again and again refers to the parties to the “compact” (assuming for the sake
of argument that the Constitution is a “compact” among the States), and to the particulars of
their participation in the “compact” in the form of their rights, powers, privileges, immunities,
and disabilities. Except as to one matter, Article V allows for any conceivable amendment of
the Constitution. So what prevents an amendment which releases one of the original thirteen
States from her original “Ratification” of the Constitution under Article VII—the effect of
which release, according to Article VII itself, being that “the Establishment of th[e]
Constitution between the States so ratifying” would be set aside with respect to that particular
State? Does it matter that such an amendment would refer or relate to a party (that is, a
State), or to a term of the “compact” (the continuing validity of that State’s “Ratification”), or
(as I submit is obvious) to both the party and the term, inasmuch as the two are inextricably
linked? However such an amendment were phrased, its undeniable effect would be that the
State would be allowed to leave the Union (that is, to “secede”). Similarly for Article IV,
Section 3, Clause 1, which provides that “[n]ew States [beyond the original thirteen] may be
admitted by the Congress into this Union.” What prevents any admission of such a “new”
State from being subsequently overridden and cancelled by an amendment of the
Constitution under Article V (whether the amendment focuses on the new State herself or on
that State’s admission to the Union)? Would not the undeniable effect of such an amendment
be to allow that State to leave the Union (that is, to “secede”)?To be sure, no State can be
expelled from the Union through an amendment of the Constitution, because Article V
provides that “no State, without its Consent, shall be deprived of its equal suffrage in the
Senate”. But, “with[ ] its Consent”, any State can seek to “secede” from the Union through
amendment of the Constitution, because such an amendment is perfectly conceivable and
nothing in Article V precludes it. Could it possibly matter, then, whether such an amendment,
focusing on the party, were entitled “An Amendment To Allow the State of X To Leave the
Union” or “An Amendment To Allow the State of X To Secede From the Union”? Or whether
the amendment, focusing on the term, were entitled “An Amendment To Invalidate a Certain
Ratification of the Constitution”?
4. Finally, Mr. Baldwin asks whether “you think the constitution is defective or do you think
that the federal government has usurped its authority?” He seems to favor the conclusion that
“the constitution is defective”. There is, however, a third alternative which he has not
Page 37 of 42
considered (at least in these commentaries)—namely, that neither is the Constitution

defective, nor has “the federal government * * * usurped its authority”, but that rogue public
officials in the General Government (and, if the whole truth be told, in the States as well) have
usurped powers in violation of both the Constitution and numerous laws enacted in
pursuance of it—such as 18 U.S.C. §§ 241 and 242.
Perhaps an allegory is appropriate here: If banks in Smallville are being robbed by thugs
acting in secret collusion with rogue policemen, patriotic and rational citizens of that town
will not conclude that the laws against bank robbery are “defective”, or that the local
government which happens to employ those secretly dishonest policemen has “usurped its
authority”, or that the people’s only hope is somehow to “secede” from Smallville entirely.
Rather, such citizens will expose the individual rogue policemen as criminals, to the same
degree as the thugs, and take appropriate action to weed them out of office and to punish
them for their misdeeds. The patriotic and rational citizens will probably first petition their
town council to purge the police department of rogues. If no action is forthcoming from the
council, the citizens will elect a new slate of town councilors. If the new councilors turn out to
be as ineffective (or corrupt) as the old ones, the citizens may even form their own Town
Militia, and employ it in providing armed guards for the banks and in maintaining close
surveillance of suspected policemen.
In each of these situations, though, the citizens will be acting in the interest of Smallville,
within and for the vindication of her laws. The very last thing they will do, or even think of
doing, will be to “secede” from Smallville. Because they will realize that, if they cannot correct
the problem in Smallville, they are probably incompetent to govern themselves effectively
anywhere else. Thus, “secession” will not help them. It will only impose upon them
somewhere else new intractable problems that will further expose their political ignorance
and impotence, and visit upon them the malignant harvest of their own folly.
So how do real contemporary Americans in the several States differ from the fictional
inhabitants of Smallville? In a decisive way: namely, that this country consists of fifty
Smallvilles, in only one of which the citizens need to use their collective intelligence in a
constructive way to solve, according to constitutional principles, the political problems that
plague them. Because, once one Smallville shows the way, the others will follow. So, at this
stage in America’s journey, “secession” is not a matter of finding the way, let alone of showing
the way, but of running away. And that, I should hope, is not the truly American way.
PART 12
argument that a State’s supposed “right to secede” from the Union does not depend upon any
procedures within the Constitution (such as the process for amendment in Article V), and
then closes with a ringing rhetorical defense of his position. Although I have already
addressed most of Mr. Baldwin’s legal contentions in earlier parts of my response to his
commentaries, his twelfth article does raise a few issues that merit close consideration.
1. Mr. Baldwin poses the question, “Are you to argue that three-fourths of the states [through
the process of amending the Constitution] have the implied power to cause detriment to the
remaining one-fourth of the states without any remedy being left to the remaining one-fourth
of the states?” The answer is that Article V grants explicit (not merely implied) power for
Page 38 of 42
three-fourths of the States to enact amendments, even when vehemently opposed by the
remaining one-fourth of the States—opposition from which, doubtlessly, would reflect their
determination that the amendment in issue would “cause [them] detriment”. That, however,
is the “compact” to which all of the States voluntarily assented; and, as with any “compact”,
the parties must take the bitter with the sweet. Is this not exactly what happens, too, in
Congress—and even more pointedly there, in that mere majorities in the House and Senate
can enact legislation that will “cause detriment” to those in the minority? But if the legislation
is constitutional, do those in the minority have a “right” to complain, in the sense that those
in the majority have a “duty” to repeal the offensive legislation? And surely no one doubts that
“enforcement [of such laws of the United States] is no invasion of state sovereignty. No law
can be, which the people of the States have, by the Constitution, empowered Congress to
enact.” Ex parte Virginia, 100 U.S. 339, 346 (1880).
Mr. Baldwin also asks, “Did not our constitution attempt to limit all vestiges of a tyrannical
majority?” The correct answer to this question is, “The Constitution does not countenance
tyranny of any kind; but in some of its procedures it does allow for ‘majority rule’, usually by
simple majorities and in extraordinary cases by super-majorities.” Let us, after all, recall what
“tyranny” actually is. It is not synonymous with majority rule, as applied in a legislature
enacting constitutional laws according to constitutional procedures. Rather, as John Locke
defined it, “Tyranny is the exercise of Power beyond Right, which no Body can have a Right
to. And this is making use of Power any one has in his hands; not for the good of those, who
are under it, but for his own private separate Advantage”. An Essay Concerning the True
Original, Extent, and End of Civil Government (1698), Chapter XVIII, § 199. As its Preamble
attests, the Constitution requires that the General Government “provide for the common
defence” and “promote the general Welfare” in all of its actions—and if it tries to do so in
good faith, then, by definition, those acts are not “tyranny”, notwithstanding that (as is almost
always the case) even the most scrupulous regard for “the common defence” and “the general
Welfare” cannot be expected to leave everyone in the country equally safe and well off.
2. Mr. Baldwin then contends that,
[i]f the argument goes that the amendment clause [that is, Article V] put all of the ratifying
states on notice that secession could only be accomplished through three-fourths of the states,
then the remaining one-fourth of the states would most certainly argue that the amendment
clause never admits the right of three-fourth of the states to deny them the use and benefit of
the (permanent and perpetual) union itself, but only that the terms of the constitution could
be changed—not the parties.
Now, Mr. Baldwin is correct that the process of amendment cannot be employed “to deny
[any of the States] the use and benefit of the (permanent and perpetual) union itself”. We
know that, though, not because Mr. Baldwin says so, but because Article V says so—namely,
“that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate”.
Observe that, if this restriction did not appear, then, because of the otherwise unlimited
nature of Article V, an amendment of the Constitution could “deprive[ a State] of its equal
Suffrage in the Senate”, and possibly of any “Suffrage” there, in effect expelling the State from
the Union (or at least denying it equality of membership in the federal system, which in
practice could amount to the same thing). Also observe that, “with[ ] its Consent”, a State
may be “deprived of its equal Suffrage in the Senate” under Article V. And exactly how would
that come about? Self-evidently, by a State’s affirmatively seeking such a result through the
Page 39 of 42
process of amendment. But a State would never affirmatively seek to surrender the benefit of
her equal suffrage in the Senate, yet remain subject to all the burdens of the Constitution. So,
if a State would consent to be “deprived of its equal Suffrage in the Senate”, she would do so
only as the consequence of an amendment allowing her to leave the Union entirely, giving up
the benefits but also being relieved of the burdens at the same time. Inasmuch as Article V
plainly contemplates the possibility that, under some circumstances, a State would consent to
give up her “equal suffrage in the Senate”, Article V plainly contemplates as well that a State
could choose to leave the Union (or “secede”) by the process of amendment. Mr. Baldwin, of
course, claims that “only * * * the terms of the constitution c[an] be changed—not the
parties”. But on what legal authority he bottoms this contention he does not say. (In the
common law of contracts, for example, this result could be had by a “rescission” or a
“release”; so why the same principle could not apply to the constitutional “compact” through
an “amendment” is not clear.) And even if he could identify some general legal rule to his
purpose, he would still have to prove that it is capable of overriding Article V.
3. Mr. Baldwin then asks “Why Not Require Three Fourths of the States to Correct State
Action, As Opposed to Federal? * * * [W]hen the suggestion is made that an individual state
has the right to resist the federal government until and unless three fourths of the states
declare otherwise through ratification [of a constitutional amendment], they reject it out of
hand.” I have no idea who the “they” are to whom Mr. Baldwin refers. But I know that I do not
“reject * * * out of hand” his contention. For example, with respect to the unconstitutional
and economically destructive Federal Reserve System which rogue public officials in the
General Government have foisted on America, the States certainly do have “the right to
resist”—in particular, by selecting for their own use an economically sound and constitutional
alternative currency in preference to Federal Reserve Notes. The States’ constitutional right to
do so has been upheld even by the Supreme Court. Lane County v. Oregon, 74 U.S. (7
Wallace) 71 (1869); Hagar v. Reclamation District No. 108, 111 U.S. 701 (1884). So, this is an
area in which three-fourths of the States would be required to support a constitutional
amendment to prevent such resistance by individual States.
4. Finally, Mr. Baldwin complains that “[t]h[e] right of secession would prove to be too
inconvenient, unionists say, and thus it should be ‘unconstitutional’”. Again, I have no idea
who the unnamed “unionists” are to whom Mr. Baldwin refers. But I know that I find
“secession”, not to be unconstitutional because it is “too inconvenient”, but to be too
inconvenient because it is unconstitutional. If proponents of “States’ rights” and “individual
rights” really want to oppose usurpation and tyranny flowing from rogue public officials in the
General Government (and all too often from rogue officials in the States, as well), they must
do so without invoking purported “remedies” that themselves smack of usurpation or other
forms of illegality. In addition, they must propose remedies that, as a practical matter, have a
reasonable chance to succeed. Even in the hands of one of the greatest warrior races known to
history, kamikaze tactics proved unavailing.
“Secession” as most “secessionists” define that term cannot be justified under the
Constitution. It can be justified in principle under the Declaration of Independence, but only
when the conditions precedent required by the Declaration of Independence obtain. And
even then it can be justified in practice only if a “seceding” State is fully prepared, before she
“secedes”, to deal with all of the political, economic, and social consequences of her action.
What does this entail?
Page 40 of 42
Assume for purposes of argument that both the people and their government in State X want
to “secede” from the Union. (That assumption itself requires an heroic act of faith and
suspension of disbelief; but Mr. Baldwin’s enthusiasm for the idea and eloquent support of it
in his commentaries suggest that it might happen.) Now what must State X do? I suggest the
following sequence:
(i) State X seeks a constitutional amendment permitting her “secession” from the Union. If
she succeeds, her problem is solved. If she fails, she at least has added an important “Fact[ ]
submitted to a candid world” (as the Declaration of Independence put it) in support of the
conclusion that “secession” is her only alternative, by proving that Congress and the rest of
the States are deaf to her legitimate complaints.
(ii) At the same time, State X seeks a determination by the Supreme Court that she may
“secede” on the basis of some legal theory that does not involve amendment of the
Constitution. Again, if she succeeds, her problem is solved; whereas, if she fails, she at least
has added another important “Fact[ ] submitted to a candid world” in support of her position,
by proving that resort to the Judiciary is bootless.
(iii) While steps (i) and (ii) are going forward, State X adopts an economically sound
alternative currency and revitalizes her Militia—both of which measures she is entitled to take
right now, without anyone’s permission. If State X succeeds in these measures, she may
discover that “secession” is unnecessary, because the example she sets may galvanize other
States into similar action, totally changing the balance of power between the States and rogue
public officials in the General Government. In any event, State X will be prepared to deal with
the vicissitudes of “secession” in regard to her own economy and “homeland security” if
“secession” eventually does become necessary.
(iv) At all times, State X broadcasts to Americans throughout the country the basis for her
desire to “secede” from an oppressive Union, the legal grounds on which she contends that
she is entitled to “secede”, and her unsuccessful attempts to exhaust all of her political and
judicial remedies, so that the prudence and justice of her cause will be made manifest
everywhere.
If a State is willing to take at least these steps, and succeeds in doing so, she may never have
to attempt to “secede”. And if a State is unwilling or unable to take at least these steps, she
will never have a ghost of chance to succeed in “seceding”. Audacity can sometimes overcome
adversity; but imprudence never can.
EndNotes:
Timothy Baldwin’s original article, sections 1-12 combined, is found here;

http://www.scribd.com/doc/26576127/Timothy-Baldwin-A-Concurring-Opinion-for-
Secession
Dr. Vieira’s original response to Timothy Baldwin’s article, sections 1-3, is found here:
http://www.newswithviews.com/Vieira/edwin210.htm
This document represents the combined response, sections 1-12, from Dr. Vieira to Timothy
Baldwin.
Page 41 of 42
Edwin Vieira, Jr., holds four degrees from Harvard: A.B. (Harvard College), A.M. and
Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School).
For more than thirty years he has practiced law, with emphasis on constitutional issues. In
the Supreme Court of the United States he successfully argued or briefed the cases leading to
the landmark decisions Abood v. Detroit Board of Education, Chicago Teachers Union v.
Hudson, and Communications Workers of America v. Beck, which established constitutional
and statutory limitations on the uses to which labor unions, in both the private and the
public sectors, may apply fees extracted from nonunion workers as a condition of their
employment.
He has written numerous monographs and articles in scholarly journals, and lectured
throughout the county. His most recent work on money and banking is the two-volume
Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution
(2002), the most comprehensive study in existence of American monetary law and history
viewed from a constitutional perspective. www.piecesofeight.us
He is also the co-author (under a nom de plume) of the political novel CRA$HMAKER: A
Federal Affaire (2000), a not-so-fictional story of an engineered crash of the Federal
Reserve System, and the political upheaval it causes. www.crashmaker.com
His latest book is: "How To Dethrone the Imperial Judiciary" ... and Constitutional
"Homeland Security," Volume One, The Nation in Arms...
He can be reached at his new address:
52 Stonegate Court
Front Royal, VA 22630.
E-Mail: Not available
###
Page 42 of 42

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Edwin Vieira – Thoughts on “A Concurring Opinion”

THOUGHTS ON “A CONCURRING OPINION”

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

Responding to Timothy Baldwin’s “A CONCURRING OPINION FOR SECESSION (Part 1-12)”

Timothy Baldwin’s original article, sections 1-12 combined, is found here;

In responding to Timothy Baldwin’s “A CONCURRING OPINION FOR SECESSION (Part 2)”,

Now, addressing Mr. Baldwin’s points:

That the Powers of Government may be reassumed by the People,

* * * That the powers of government may be reassumed by the

We the Delegates of the People of Virginia * * * Do in the name and in behalf of

9. Finally, Mr. Baldwin concludes that,

It is somewhat difficult for me to respond to Timothy Baldwin’s “A CONCURRING OPINION

Now, inasmuch as Article V of the Constitution can be construed as a perfectly adequate

It is frustrating for me to respond to Timothy Baldwin’s “A CONCURRING OPINION FOR

(6) Finally, Mr. Baldwin argues that the States

7. Finally, Mr. Baldwin asks

1. Mr. Baldwin writes with some heated sarcasm that

being a “compact” (according to Mr. Baldwin), “secession” (other than through a

1. Mr. Baldwin asserts that

4. Mr. Baldwin then argues that,

2. Mr. Baldwin asks

5. Mr. Baldwin then asks

1. In support of a State’s right to “secede”, Mr. Baldwin asks

2. Mr. Baldwin then claims that,

constituted a “compact” among the original thirteen States—provide as to “secession”? Mr.

Resolved that in the opinion of Congress it is expedient that * * * a Convention of delegates * *

4. Mr. Baldwin then offers an analogy to

6. Finally, Mr. Baldwin argues that

considered altering the language in the Confederate States’ constitution so as unequivocally to

considered (at least in these commentaries)—namely, that neither is the Constitution

2. Mr. Baldwin then contends that,

Timothy Baldwin’s original article, sections 1-12 combined, is found here;

He can be reached at his new address:

E-Mail: Not available

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