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If At First You Don't Secede

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In my November 10, 2010 OpEdNews article "The Tenth," I gave a history of the Tenth Amendment, including Chief Justice Marshall's and President Jackson's opinions of the subject:

" The first major instance of a clash between the Federal government and the States over the Tenth Amendment was in the Supreme Court's decision in McCullough v. Maryland (17 U.S. 316) in 1819. This is considered one of the seminal cases in the Supreme Court's establishment of its implied power of judicial review, as well as establishing the Federal Government's power under Article I, section 8's implied powers, and Article VI's supremacy clause. McCullough was the manager of the Second Bank of the United States' Baltimore branch. The State of Maryland attempted to fine McCullough and the Bank for operating without a Maryland state charter, using the Tenth Amendment as their justification. The Maryland state courts upheld the fines, but Chief Justice John Marshall, in a decision by a unanimous Supreme Court, overturned the state courts, on the basis of three arguments.

  • One, the Constitution is a direct social contract made with the People of the United States at the Constitutional Convention, and therefore the Federal government arises directly from the consent of the People of the United States as a whole, and thusly restricts the sovereignty of the individual States in this matter. [Emphasis added.] Therefore, the power of the Federal government is supreme, because it is founded upon the will of the People of the United States as a whole. To quote Chief Justice Marshall, 'If any one proposition could command the universal assent of mankind, we might expect it would be this--that the government of the Union, though limited in its power, is supreme within its sphere of action.'

  • Two, that the Congress must act under the explicit powers given it under the Constitution. That in order to carry out these explicit powers, Congress must sometimes use powers that are only implied by the Constitution, not expressly stated. For example, the term 'bank' is not found in the Constitution, but the Congress does expressly have the powers to tax and to spend. This gives Congress the implied power to create a national bank if Congress believes that this is the best way to exercise this explicit power. Any attempt by the authors of the Constitution to state every possible circumstance that a government might face within its foundation document, would leave a document so unwieldy and inflexible that it would be useless as the circumstances of the World changes, so some powers must be implicit, not explicit.

  • Three, the creation of the Second Bank of the United States was both 'Necessary and Proper' (under Article I, Section 8) for the functioning of the Federal Government at the time of law's passage, and that Congress had not overstepped its limitations under the Constitution. Justice Marshall wrote that while the State of Maryland had argued for a very limited interpretation of the 'Necessary and Proper' clause, passing only those laws which were absolutely essential for carrying out Congress's enumerated powers; so narrow an interpretation would make it impossible for Congress to carry out its duties under the Constitution as circumstances changed. To quote Chief Justice Marshall once again, 'Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.'"

It is the first part of this reasoning that makes secession impossible by a state acting independently of the other states. "[T]he Constitution is a direct social contract made with the People of the United States at the Constitutional Convention, and therefore the Federal government arises directly from the consent of the People of the United States as a whole, and thusly restricts the sovereignty of the individual States in this matter. " To quote President Jackson in his answer to the authors of the Ordnance of Nullification, "The Constitution of the United States, then, forms a government ; not a league; and whether it be formed by compact between the states or in any other manner, its character is the same. It is a government in which all of the people are represented, which operates directly on the people individually, not upon the states; they retained all the power they did not grant. But each state, having expressly parted with so many powers as to constitute, jointly with the other states, a single nation, cannot, from that period, possess any right [Jackson should, in my opinion, have said--for the sake of precision--power; see my February 28, 2009 OpEdNews article 'The Tao of Government ,' for more on government, rights, power, authority, and sovereignty--RJG] to secede, because such secession does not break a league but destroys the unity of a nation; and any injury to that unity is not only a breach which would result from the contravention of a compact but it is an offense against the whole Union." The United States is not a conglomeration of states, as it was under the Articles of Confederation. It is a union of the People, as is stated in the Preamble of our Constitution: 'We the People of the United States, in Order to form a more perfect Union...' " A State cannot secede by its own volition, but must seek the permission of the People of the United States as a whole to leave our Union. This can only be done through the instrument of a Constitutional Amendment.

Too many people, especially in the Tea Party and other groups on the fringes of the Right, are under the misapprehension that the Tenth Amendment is some sort of cure-all for an overarching Federal Government. Nothing could be further from the truth.

As Chief Justice Marshall stated in McCullough v. Maryland, "If any one proposition could command the universal assent of mankind, we might expect it would be this--that the government of the Union, though limited in its power, is supreme within its sphere of action." The Federal Government receives its power, authority, and sovereignty directly from the source of those attributes: We the People of the United States, not from the states themselves. As such, the Federal Government is supreme, and answerable only to the People (who the Right has always reflexively distrusted) and their representatives, elected or appointed and confirmed under the provisions of the Constitution. The States have no say in the workings of the Federal Government, other than--as representatives of the State's citizens--proposing a Constitutional Convention, and voting for or against the ratification of amendments to the Constitution.

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The Right-wing reactionaries who wish to ignore this simple fact are also attempting to ignore that there are more than two centuries of legislation and case law that makes their overly simplistic, self-serving interpretation of our Constitution not only wrong, but dangerously wrong.

I assume that the vast majority of "Tenthers" have no idea of the consequences of making the Tenth Amendment more powerful with regard to the States than it is already is. The reality is that it is not the Federal Government who will be most adversely affected by the strengthening of the power of the States; it will be the individual citizen.

First of all, most of your Federally protected rights in the workplace are based upon the extension of the Congress's ability to regulate interstate commerce (Article I, Section 8, clause 3; affirmed by Gibbons v. Ogden, 1824), including rights of collective bargaining, both a minimum and prevailing wage, as well as workplace safety. Because of this, there is a group of plutocrats and their corporate proxies who are using the "Tenthers" as their unwitting puppets because they would like to see the Tenth Amendment used to reduce Congress's ability to regulate interstate commerce. If the plutocrats and their proxies get their way, they could once again be able to pick and choose among the States for the best set of laws to do business under, with regards to labor laws, just as Standard Oil did more than a century ago.

Second, and of far greater importance in my mind, are the application of individual rights under our Constitution's Bill of Rights to the States, using the Fourteenth Amendment's Equal Protection and Due Process clauses. Most American's do not realize that initially, the Tenth was used as a means to prevent the application of our rights under the Federal Constitution's Bill of Rights to the individual states. It was less than one hundred years ago in Gitlow v. New York (1925), that the Constitution's Bill of Rights began to be applied to the States. Gitlow overthrew thirteen decades of precedent by stating that the right of procedural due process for an individual under the Fourteenth Amendment outweighed the power reserved to the State under the Tenth.

So if you wish to be stripped of your legal rights under the U.S. Constitution, which even today are more extensive and all encompassing than similar rights guaranteed under many State constitutions, then, please, go ahead, and try to secede. And if you are successful, which I doubt, don't come crying to me when you discover that your State does not guarantee your rights nearly as well as the American Constitution does: I've warned you. By the way, many of those States that are most strongly in favor of secession (Texas for example), are the same States that are weakest in protecting the rights of their citizens with their State's Constitution.

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I am truly incensed that there are people who are so ignorant of history, have such short memories, and are so self-centered in their world-view that they are talking about secession. Adding insult to injury, many of these people are the same individuals--or their ideological successors--who told those on the left who were against the War in Vietnam, as well as the many Americans who were trying to get Richard Nixon thrown out of the White House for his part in the Watergate debacle, to either "Love it or Leave it."

We are always told that our actions have consequences. The members of the "Tea Party" who are crying for secession seem to think that the positive consequences of their State seceding outweigh the negative. Much of the motivation for secession arises from the right-wing dismay that Barack Obama was not only elected President of the United States, but last month was re-elected President of the United States. My personal opinion is that much of the motivation for this action is racially, i.e., fear based. Someone has frightened them with a story that President Obama was not born in the United States (a lie); someone has told them that President Obama is a Muslim Socialist/Communist/Nazi, who wishes to take away their guns, and strip them of all of their rights (lie,lie,lie); and that their State can leave the United States, where Whites are about to become a minority, because they can't stand the idea of living in a country where whites aren't in charge (lie,true,true). Deep down, they are afraid that when the non-Whites assume power, they will treat the Whites as badly as the Whites treated them.

They may have reason for their fear. As Thomas Jefferson wrote in his Notes on the State of Virginia (Query 18; 1781), " I tremble for my country when I reflect that God is just; that his justice cannot sleep forever." And I fear that Jefferson may well have underestimated the wrath of an enraged Deity expressed through the actions of His once oppressed children. Let us hope that more merciful and forgiving individuals prevail.

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Richard Girard is an increasingly radical representative of the disabled and disenfranchised members of America's downtrodden, who suffers from bipolar disorder (type II or type III, the professionals do not agree). He has put together a team to (more...)

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at those on the Right--the Tenthers, the Tea Parti... by Richard Girard on Wednesday, Dec 26, 2012 at 4:38:15 PM
That's what we've become. What strikes me is the f... by molly cruz on Thursday, Dec 27, 2012 at 3:40:39 PM
I do not know if all human brains are on the same ... by Richard Girard on Thursday, Dec 27, 2012 at 4:32:07 PM
Let us remember:" People are entitled to their own... by BFalcon on Friday, Dec 28, 2012 at 5:56:34 AM