The Reappearance of Secession

Back in 2009 the author published critique of the Supreme Court case of Texas v. White. This case was a Reconstruction Era matter, which Supreme Court Chief Justice Salmon Chase manufactured into an excuse for declaring that the states of the union had no right to leave it once they had joined. Despite this, there still exist sentiments toward secession in a number of states, and Texas continues to have an active group of citizens who believe that they not only have the right to secede, but a duty, also in order to protect the rights of the citizens of the state. Enter former Texas Congressman Ron Paul, who recently addressed an event at the Ludwig von Mises Institute on, you guessed it, the subject of secession. The event was suitably entitled “Breaking Away: The Case for Secession.”

Perhaps the most telling quote from Rep. Paul might be the following:

“The Fed is gonna end. There is going to be a de facto secession movement going on. The states are going to refuse to listen to some of the laws. We’ve seen tremendous success already with states saying to the federal government, ‘We’re not gonna listen to you anymore about the drug laws.’ And they’re getting out of it, and I think the American people are waking up to that, and as far as I’m concerned, the more the merrier.”

 

It should be noted that this writer is not a fan of Dr. Paul, except to the extent that he acted as a political gadfly, stirring up issues that needed attention and were being neglected by the political mainstream. While he failed to garner much support, such lack does not require that Dr. Paul was wrong and in this case, he may be on to something. The simple fact is that a sequence of events may have brought the states to a point where they will have to decide which direction they will go; into a super-state governed from Washington DC, or on their own, maintaining local laws that best fit their populations.

Dr. Paul, wisely perhaps, restricted his remarks on the subject of state’s rights and nullification to the subject of illicit drugs. With Washington State and Colorado effectively de-criminalizing the possession and sale of marijuana, in violation of federal law, a first step may have been taken toward this direction. More may be coming if other states take umbrage at federal edicts, legislative acts, and / or court decisions. Aside from regulation of drugs, there are two other areas that merit monitoring. These are homosexual marriage and firearms regulation.

Federal authority on regulation of drugs is, at best, indirect. Regulating citizen health, safety and morals was the domain of the Tenth Amendment powers or state’s rights. If illicit drugs traveled in interstate commerce, a case could be made for federal regulation, but if the grower does not market it beyond his own state, then where does federal jurisdiction attach? Is it on the spurious claim that they have control over the grower because his product could travel across state lines, regardless of whether it actually does?

This brings us to the subject of homosexual marriage. As of this writing, only a small number of states have adopted it by legislative act. For most states it has been a matter of federal court rulings, which may well be another constitutional violation. Again, this matter falls squarely within two, or at least one, of the Tenth Amendment powers; health and morals. So far, no one has seen fit to oppose such a ruling, but a revolt may appear in the South, where religious belief may have a significant impact on such matters. Public resistance to federal regulation of local behavior or sensibilities may simply be too much for some state governments to accept, if the citizens demand otherwise. What may also be more to the point is that certain states may see this as another usurpation of state powers by the federal system, in which the courts use the 14th Amendment to overrule anything that gets in the way of the federal political agenda. That includes states exercising their constitutionally guaranteed powers to regulate certain matters within their own borders, and well within of the intent of the 14th Amendment as enacted.

The last matter concerns firearms, which falls under the constitutional Second Amendment. States have generally been very jealous of their rights to control firearms within their own borders. Some have been more restrictive, and have fallen under unexpected rulings by the courts that they have exceeded their authority. Others have been more open, and are trending toward even less restrictions, as is the case in Texas, which is contemplating an unrestricted open carry law.

As this is happening federal authorities, motivated by Barack Obama are attempting to restrict citizen access to arms in new ways, such as destroying dealer businesses (Operation Chokepoint) or restricting access to ammunition such as has been threatened at the time of this writing. The ammunition presently in question is for use in the extremely popular AR-15 type tactical rifle. Threats have been made to ban the sale of this ammunition either by BATF regulation or by executive order.

Both approaches would be highly questionable under the consistent trend of federal rulings in Second Amendment cases. If federal authorities attempt end run the courts and the constitution, then citizens in many states will put serious pressure on their governments to fight back, perhaps to the extent of nullification action or further promoting the Article 5 Convention proposal. Nullification may thus become a matter of simply refusing to recognize federal law or in extreme cases, taking action against federal authorities if they attempt to enforce it.

Other matters that may also impact possible state reactions including Common Core regulation of education, border control / illegal immigration issues and outright non-recognition of constitutional authority by the executive branch for political purposes.

What former Representative Paul is suggesting is that some states and a significant portion of their populations will not continue to put up with federal domination. Paul, as a libertarian at heart will certainly support state reactions to rein in federal excesses. And if federal authorities of whatever party fail to recognize limitations, nullification or simple refusal to follow federal directives may be the only course available under the circumstances.

What follows is the question of what the federal government might do.   In the case of Washington and Colorado, nothing so far. If more states follow suit, perhaps not on the same issues, but by simply ignoring DC, then the federal supremacy doctrine will take a severe hit and may not recover unless and until federal law is brought back into compliance with the protection of state powers.

Possible federal reaction appears limited. The most likely might be denial of federal funding for state activities. The states would certainly find this difficult to live with, but it could be done if they decide to give up imitating the federal “do everything for everybody” model and return to a more citizen-centric approach, cutting government activities and privatizing significant amounts of state activity. At the same time, states could refuse to allow federal authority to impose taxation within their borders and appropriate such revenues for themselves, or return them to the people, as might be the case in states with no income tax. This would help to offset the denial of federal funds.

On the extreme fringe, DC might attempt military action against rejectionist or rebellious states. This appears to be possibly the least effective option because volunteer soldiers are less likely to be willing to attack their fellow citizens and the possibility of a soldier sit down strike becomes real. Officers might well be willing to participate, firm in the knowledge that there will be serious public support for their doing so.

But the bottom line that Dr. Paul is referring must be a recognition that the rule of law is breaking down because the people ultimately charged with enforcing that law are not doing so because it counters their personal interests. One should not be expected to follow “rule of law” when the rules are handed down by those who have no respect for them and use them only to achieve increased levels of power and corruption. When that happens, the result is a rule of man or woman and an aristocracy takes hold.

Lord Acton wrote that power tends to corrupt. This fact underlies an important principle that should be considered foundational to the intent of the framers of the US Constitution. This principle is that if government is limited in its power, then the potential for corruption is likewise limited. Thus, as the nation’s government has seized greater amounts of power in the last several decades, the corruption that used to be primarily a backroom feature has gone public. The purveyors of corruption no longer care about public knowledge of their actions because essentially nothing can be done. The watchmen have been paid off or are up to their necks in the same illegal dealings.

So, when there is no rule of law at the top, it follows that the lower levels need not obey those laws either. DC should consider this seriously when it contemplates its future direction.

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