There has long been a question presented in society circles, not courts, about the legal secession of a state. The only comment on this from anyone in the Supreme Court was a letter from Justice Scalia to a movie producer on the subject. He mentions that there is no right to secede, for that was resolved by force of arms rather than by the rule of law. Similarly, given the rising hostility in the country, there is another version of this question that we need to address. Since the United States will break up in the future as all centralized governments have done throughout history, does that necessitate civil war?
We need clarification of this issue, and even Vladimir Ulyanov (Lenin) (1870–1924) originally proposed that the Soviet Union should have been a confederation with the member states retaining sovereignty and the right to secede. We now need a Constitutional Amendment that not only should a state be able to secede to avoid another civil war, but we should also be able to expel a state like New York, which refuses to comply with the rule of law as it practices its own version driven by its self-interest.
A state should be expelled from the US without its consent when it refuses to comply with the rule of law, as New York City is doing right now with Trump with its selective prosecution. New York is out of control, and this is an endeavor all to influence the national election, interfering in the right to vote for the entire country – which is itself a federal felony. This prosecutor, Bragg, and this Judge should be hauled out for violating the civil rights of everyone in the country. But this legal fiasco was orchestrated by Merrick Garland, all in a desperate attempt to create one-party rule and to protect the swamp.
We have a serious problem with the word “sovereignty” for a state, and the feds can prosecute you for the same offense, claiming each is a separate sovereign. Yet, then, they want to have it both ways that states CANNOT secede and exercise their own sovereignty. Worse still, Washington claims that they are the ULTIMATE sovereign under the Supremacy Clause, and thus, there are no state rights. We have a major problem because there is a serious conflict in our human rights, which is all based upon this word – sovereignty.
A Constitutional Amendment could do this just as quickly as allowing a state to secede voluntarily, except that Article V states:
“no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
If a state is removed from the Union, it obviously is not represented in the Senate. However, at this point, is it even a state under the Constitution if it voluntarily secedes? Moreover, the plain language reads that no state shall be derived “without its consent.” Obviously, there was no legal basis to deny the South to secede. The North simply disagreed with slavery on a moral basis but that did not justify unilateral civil war.
Article V also seems to imply that if both parties agree, a state might be able to be expelled from the national viewpoint yet voluntarily from its self-interest. The Constitution does not describe such a method that might be interpreted as a one-sided expulsion or voluntary separation.
Morality aside, reviewing this legally leads to a different result. If we look at the Civil War aftermath and the events from a legal perspective, following the U.S. Civil War, states that attempted to secede from the U.S. to join the Confederate States of America were NO LONGER represented in Congress until their secession ceased and a NEW post-war government APPROVED by the dictatorship of the Military Union forces in the Reconstruction era. Legally, this still did not support the theory that the South had ceased to be a state. The theory that supported the one-sided view of the North was that there was purely a vacancy in the positions because these Southern states had NOT held elections. Thus, the legal fiction for moral jurisdiction was that the Southern States did not send members to the U.S. House of Representatives or the U.S. Senate, and were in degradation of the U.S. Constitution once the 14th Amendment was adopted (denying the right to serve in the office to confederate, leaders, until Congress acted otherwise). This is what they tried to use against Trump.
The South was essentially denied all Constitutional rights while pretending they were still part of the Union. A carpetbagger was a Northerner who moved to the South during the period of Reconstruction (1865-1877) for economic, social, and even political opportunities. A scalawag was a white Southerner who supported the Republican Party during the period of Reconstruction. The term “carpetbagger” was an individual who would pack their belongings in a large bag called a carpetbag.
Many carpetbaggers were former Union soldiers, businessmen looking to start new businesses, or individuals working with the Freedman’s Bureau. Carpetbaggers were able to buy up cheap Southern land and businesses due to the former Confederacy’s economic problems and the fact that the Southerners lost everything since their bonds and currency simply became worthless.
Prior to the 14th Amendment, the South was denied any U.S. government representation. The “legal” avoidance of this fiction was that the South was merely viewed as a function of practical reality, the war powers of Congress, and perhaps the “invasion or insurrection” and “Republican government” clauses of Article IV of the U.S. Constitution.
Article IV Section 4 guarantees a “Republican Form of Government” which it did not do with regard to the South, but the loophole was that it would protect the State “against domestic Violence” implying that the Federal government has the right to invade a state under the pretense that there is domestic violence.
There was an insurrection in 1794 that Americans were taught in history class, but in school, they never taught the political and legal implications of the Whiskey Rebellion from a separatist perspective. George Washington became president in 1789. They imposed a tax on Whiskey, and this sparked a rebellion. Washington was confronted with what appeared to be an armed insurrection in Western Pennsylvania. How to respond became the question, but it centered on the idea of who was actually the legal sovereign of the nation. The Federalists took the position that the federal government was now sovereign as if it had merely replaced the king. Those in the rebellion took the position that they, the people, were sovereign.
The concept of sovereignty has been perhaps the most controversial idea in political science as well as international law. The danger with interpreting this word has always centered on power and authority. As you can read in the prologue of the Declaration of Independence written by Thomas Jefferson, he clearly states that the people are the sovereign – not the state. “Governments are instituted among Men, deriving their just powers from the consent of the governed,” which explains that the people are the sovereign and that any government rules only by the consent of the people.
Even when we turn to President Lincoln during the Civil War, he states UNCONSTITUTIONALLY that the states were NEVER their sovereigns and, thus, using the Supremacy Clause, were effectively political and economic slaves to the Federalists once again.
Lincoln used the Supremacy Clause to violate all others, strip states of their sovereignty, and demand their subservient position to the Federal Government. Yet, in the rules of construction, one clause cannot be used to nullify another. Therefore, Justice Scalia merely states: “If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede.” Therefore, the Constitution was reduced to a mere scrap of paper for to justify the Civil War, they defied the very basis of civilization and resorted to force.
Granted, slavery extended to ancient times and was justified as the price for losing a war. If a city surrendered, then its people morally could not be taken into slavery. Serfdom began with the fall of Rome, and people surrendered their personal sovereignty to a lord in return for his protection in an unsettled world. The Africans were sold to the plantations in America as the spoils of war. The English would charge people with some crime and sell their term of service to a plantation in America.
Serfdom ended in Europe during the 14th century with the Black Plague but did not end in Russia until 1861. When the serfs were free, that was nice, but they owned nothing and became paid labor. That inspired Marx, which is why communism took hold in Russia, for the freed serfs owned nothing. When the slaves were freed in America, the same problem surfaced. That is why many remained in the South now as hired hands. The economy was more than 70% agrarian back then – there was no Industrial Revolution yet, and certainly no Starbucks.
It was, in my opinion, the English philosopher Thomas Hobbes (1588–1679) who provided the term “sovereignty” with a deeper modern meaning, explaining that a powerful sovereign he calls the “Leviathan” must exist in every state be it some person or body of people that have the ultimate and absolute authority to declare the law. He supported the King during the English Civil War. If you divided that authority, it would destroy the unity of the state, which is taking place today in the United States and throughout much of the Western World, for one side sees their power to force their opponent into submission.
Hobbes argued that humans can live together peacefully and avoid the danger and fear of civil conflict under certain conditions. He argued that we should give our obedience to an unaccountable sovereign (a person or group empowered to decide every social and political issue), taking the position of the anti-Democratic Greek philosophers. Otherwise, what awaits us is a “state of nature” that closely resembles civil war – a situation of universal insecurity, where all have reason to fear violent death and where rewarding human cooperation is all but impossible.
Those in power cannot contemplate a world where they have lost all power. Yet they refuse to reform and honor the Social Contract, which Hobbes saw as their part of the bargain. The condition in which people give up some individual liberty in exchange for some common security is this Social Contract. Hobbes defined this contract as “the mutual transferring of right.” In the state of nature, everyone has the right to everything – there are no limits to the right of natural liberty.
The theories of the later English philosopher John Locke (1632–1704) and the French philosopher Jean-Jacques Rousseau (1712–78) essentially accept Hobbes’ Social Contract concept, stating that this is based upon a formal or informal consent of its citizens – hence the Social Contract. Rousseau warned about those in power who keep telling us we are free; he explained then: “Freedom is the power to choose our own chains.”
Our modern Republics have forsaken this idea of a Social Contract and have been corrupted by the lust for power and total control. Nevertheless, these concepts of a Social Contract owed to the people in return for consent to rule have given rise to the idea of a doctrine of Popular Sovereignty that brings us back to the prologue of the Declaration of Independence and what has found expression in that document during 1776 that emerged in the Constitution – We the People.
Now, let us look at the Whiskey Rebellion from the legal perspective, for it demonstrated that the new national government had the will and ability to suppress violent resistance to its laws and invade states as the resistance came to a climax in 1794. To make it clear, money was only specie (gold and silver coins) since paper money was not issued Federally until the Civil War.
There was a shortage of coins on the Western frontier and the law explicitly stipulated that the tax could EXCLUSIVELY be paid in specie. The United States Mint was still quite young when, in 1794, the first silver dollars were made for U.S. circulation. This is why there was also a shortage of coins that contributed to the rebellion. The lack of a money supply on the frontier meant that whiskey often served as a medium of exchange just as Tobacco did in the South. In part, this tax would be stripping the frontier of what coinage they did have.
Washington knew that there was a risk of alienating public opinion. He asked his cabinet for written opinions about how to deal with the crisis. The cabinet, exercising supreme power, recommended the use of force. Only Secretary of State Edmund Randolph (1753-1813) urged reconciliation. All other cabinet members wanted to exercise raw power, for they were Federalists seeking to reestablish the same power as previously wielded by the King.
Washington pretended to do both, which most historians saw as disingenuous. Washington pretended to send commissioners to meet with the rebels seeking peace, but at the same time, he was raising a militia army. Probably like the Minsk Agreement that the German Chancellor Merkel admitted only bought time for Ukraine to raise an army. George Washington was adopting the very same strategy.
Washington’s dealing with the Whiskey Rebellion was not only met with widespread popular approval among the ruling class, but it demonstrated that the United States had merely replaced the king and it was NOT the land of the free and home of the brave. The Federalists were now the SOVEREIGN – not the people. This incident raised the fundamental question of what kind of protest was really permissible under the new Constitution and the First Amendment. Withholding taxes justified killing citizens?
What this Whiskey Rebellion truly became was a confrontation over who was SOVEREIGN. The Fed government, the states, or the people? The Whiskey Rebels and their defenders took the position of Thomas Jefferson and believed that the Revolution had established the people as a “collective sovereign.” Then “We the People” had the collective right to change or challenge the government through extra-constitutional means.
The Whiskey Rebellion did far more damage than most assume because it was a failed uprising. This is what brought down the Federalist Party, and the people turned to the party of Jefferson. The Federalists committed political suicides in their response to the Whiskey Rebellion and their thirst for supreme centralized power. What is even more disturbing is that the actions taken by George Washington were clearly UNCONSTITUTIONAL. Even worse, it outright ignored the Supreme Court, which had just decided that question of who is the actual SOVEREIGN – and it was not the Federal Government!
Chisholm v. Georgia 2 U.S. (2 Dall.) 419 (1793) was the first great constitutional case decided by the Supreme Court. In Chisholm, the Court addressed the fundamental question:
It adopted an individual concept of popular sovereignty rather than the modern view used by politicians to further their own power that limits popular sovereignty to collective or democratic self-government vs. the people. In this case, the Court denied that the State of Georgia was a sovereign entitled, like the King of England, to assert immunity from a lawsuit brought by a private citizen.
Curiously, this is a case that is NEVER taught to law students because it elevates the people over the government. Law students are taught that the first great constitutional decision by the Supreme Court, which is still often cited to this day, was made by John Marshall when he was Chief Justice. However, most seem to overlook the first Chief Justice of the Supreme Court, John Jay (1745–1829), who was appointed by George Washington and was a Federalist supporting Alexander Hamilton and James Madison. In fact, Jay aggressively argued in favor of the establishment of a new and more powerful, centralized form of government yet still in a balanced system. Jay was also a writer in the Federalist Papers under the pseudonym of “Publius” and was, therefore, not an avid supporter of Jefferson.
Consequently, law schools have distorted the holding of Jay in Chisholm and deliberately teach that the Court’s individualist view of popular sovereignty articulated by Jay has been repudiated by adopting the Eleventh Amendment. However, they are using this interpretation to further the Deep State, claiming the lawsuit was thus invalid, but this by no means repudiated the view of sovereignty expressed in Chisholm. This deliberate distortion of law to further the all-powerful central government only supports the Deep State, which has overridden the constitutional rights of the people.
If find it interesting dealing with the question of who is the Sovereign – the people of the government from which all power then is derived. Justice Wilson began his analysis of Georgia’s
claim of sovereign immunity in Chisholm by addressing the very term “sovereignty” with regard to the new Constitution:
“To the Constitution of the United States the term SOVEREIGN, is
totally unknown. There is but one place where it could have been
used with propriety. But, even in that place it would not, perhaps,
have comported with the delicacy of those, who ordained and established
that Constitution. They might have announced themselves “SOVEREIGN”
people of the United States: But serenely conscious of the fact,
they avoided the ostentatious declaration.”
Chisholm, 2 U.S. (2 Dall.) at 454
Justice Wilson went on to identify possible alternative meanings of the term “SOVEREIGN” that are interesting regarding this question. He writes:
“In one sense, the term “sovereign” has for its correlative “subject.” In this sense, the term can receive no application, for it has no object in the Constitution of the United states. Under that Constitution, there are citizens, but no subjects. “Citizen of the United states.” [Art. 3. s. 3.] “Citizens of another state.” “Citizens of different states.” “A state or citizen thereof.” [Art. 3. s. 3] The term, subject,occurs, indeed, once in the instrument; but to mark the contrast strongly, the epithet “foreign” [Vatt. B. 1. c. s. 4] is prefixed. In this sense, I presume the state of Georgia has no claim upon her own citizens. In this sense, I am certain, she can have no claim upon the citizens of another state.
id/457-458
Clearly, Wilson hones in on the fact that this term occurs only “once in the instrument; but to mark the contrast strongly, the epithet “foreign” is prefixed.” Therefore, Justice Wilson clearly rejected the very concept of “subject” as inapplicable to states because, at that point in history, he was well aware that “the Government of that State to be republican, and my short definition of such a Government is,—one constructed on this principle, that the Supreme Power resides in the body of the people.”
If we look at what Wilson is writing, the understanding that the SOVEREIGNTY resides with the people and NOT the bureaucracy that has become the Deep State. From this fundamental understanding of Sovereign in the very first case decided on the Constitution and its intent, established that separation cannot be illegal and the action of Lincoln to unleash the Civil War insofar as a state has no such right to secede was unconstitutional aside from the morality of Slavery. That very question was avoided in creating the United States, for had the Constitution outlawed slavery, then the South would never have joined. Today, the question is no slavery but can easily move to abortion. Does the Federal Government have the power to override the rights of states or maintain that it is the SOVEREIGN when such a power is clearly a usurpation of power often confused by the Supremacy Clause?
Furthermore, Wilson continued his argument by stating:
“As a judge of this court, I know, and can decide upon the knowledge that the citizens of Georgia, when they acted upon the large scale of the Union, as a part of the “People of the United states,” did not surrender the supreme or sovereign power to that state, but, as to the purposes of the Union, retained it to themselves. As to the purposes of the Union, therefore, Georgia is NOT a sovereign state. If the judicial decision of this case forms one of those purposes, the allegation that Georgia is a sovereign state is unsupported by the fact. Whether the judicial decision of this cause is or is not one of those purposes is a question which will be examined particularly in a subsequent part of my argument.” id/458
Clearly, Justice Wilson provides the original understanding of the Constitution, and to the extent one uses the word “sovereignty,” this lies in the people themselves, NOT in any government formed by the people. This is the TRUE meaning of the word, and what Washington concluded against the people during the Whiskey Rebellion did not comport with the original intent of the Constitution. The government only derives power from the consent of the people. Even the Income Tax does not authorize your imprisonment for not paying taxes. It authorized imprisonment for lying to the government about your income or failing to file.
Justice Wilson further explained that there was yet a third sense of the term “sovereign” that is frequently used in the context of the feudal power of English kings. He elaborates that this third sense:
“furnishes a basis for what I presume to be one of the principal objections against the jurisdiction of this court over the State of Georgia. In this sense, sovereignty is derived from a feudal source, and, like many other parts of that system so degrading to man, still retains its influence over our sentiments and conduct, though the cause by which that influence was produced never extended to the American states. The accurate and well informed President Henault, in his excellent chronological abridgment of the History of France, tells us that, about the end of the second race of Kings, a new kind of possession was acquired, under the name of Fief. The governors of cities and provinces usurped equally the property of land, and the administration of justice; and established themselves as proprietary seigniors over those places, in which they had been only civil magistrates or military officers. By this means, there was introduced into the state a new kind of authority, to which was assigned the appellation of sovereignty. In process of time, the feudal system was extended over France and almost all the other nations of Europe. And every kingdom became, in fact, a large fief. Into England this system was introduced by the conqueror, and to this era we may, probably, refer the English maxim that the King or sovereign is the fountain of justice. But, in the case of the King, the sovereignty had a double operation. While it vested him with jurisdiction over others, it excluded all others from jurisdiction over him. With regard to him, there was no superior power, and consequently, on feudal principles, no right of jurisdiction.”
Even today, a sovereign state must have the highest authority over its territory. International law defines sovereign states as having a permanent population, a defined territory, and a government that is not under another. We can see how definitions of “sovereignty” have evolved to embrace tyranny from centralized control.
Those who have supported the tyranny of the Deep States claim that the wording of the Eleventh Amendment overruled Chisholm. But compare that wording with that of the Ninth Amendment. Sorry, but I can only conclude that by suggesting that the Eleventh overrules Chisholm, it is absurd, yet it is not taught in law schools that I am aware of. The Eleventh conflicts with the Ninth Amendment. Behind closed doors, the view often not said publicly is that the Supreme Court has deemed its first great decision too radical in its implications since the people would be Sovereign and the government exists only by the consent of the people.
In November 2015, Terance Martez Gamble was pulled over in Mobile, Alabama, for a damaged headlight. The police then searched his vehicle and found a handgun. Because he was a felon, he was prosecuted for the same crime at the same time by Alabama and the Federal government. Alabama sentenced him to 1 year in prison, and the Feds sentenced him to 46 months in prison for the same incident. The Supreme Court claimed that the Dual Sovereignty Doctrine was the exception to the Double Jeopardy Clause. Of course, here we go again with the question of who the sovereign is.
There is no such dual sovereignty doctrine exception in the Fifth Amendment’s plain text of the Double Jeopardy Clause. Gamble asserted that this Court’s precedent contradicts the common-law rights of the Double Jeopardy Clause as it was originally understood. You could then claim that a city is also sovereign, and then you can be imprisoned for violating three laws. The Supreme Court wrongly claimed that, as originally understood, an “offense” is defined by law, and a sovereign defines each law. Where there are two sovereigns, there are two laws and two “offenses.” The Court stated, “Gamble’s historical evidence is too feeble to break the chain of precedent linking dozens of cases over 170 years.”
Justice Gorsuch, dissented. He wrote: “A free society does not allow its government to try the same individual for the same crime until it’s happy with the result. Unfortunately, the Court today endorses a colossal exception to this ancient rule against double jeopardy. My colleagues say that the federal government and each State are “separate sovereigns” entitled to try the same person for the same crime.”
Here, the Supreme Court has endorsed absolute tyranny and has side-stepped everything that the American Revolution stood for. They have used this pretense of two separate sovereigns, allowing individuals to be prosecuted by an unlimited number of claimed sovereigns. This flies in the face of claiming as a sovereign, the states had no right to secede during the Civil War. If their laws violated the Supremacvy Clause, then who in Double Jeopardy can a state also proseciute you for the same act is the Fed’s have the Supremacy Clause?
The answer to this question was given 4,000 years ago by Thrasymachus. – Justice in ALL forms of government is the self-interest of those in power – PLAIN & SIMPLY!
All of this wordsmithing is about retaining federal absolute power against the plain language and intent of the Constitution’s framers and the spirit that led to the Revolution in the first place, which was also articulated by Thomas Paine in his Common Sense. As he laid out in plain words, those in power see themselves as the ultimate power, and we are merely the pawns of society. This is the very view of people like the governor of California Newsom, where instead of asking why people are leaving his state, he seeks an exit tax to punish them for leaving. This demonstrates, above all, that we are not free individuals but economic slaves to be taxed for their personal desires.
