What if the federal government passes a “law” and everyone ignores it, or actively blocks its enforcement? What if a state said it no longer would comply with the EPA, HUD, DOE, DOT, DHS, etc. etc.? What if multiple states refused to comply with federal rules, regulations and “laws”?
If they did, what then?
Would the federal government send in Federal Marshals to arrest the governor and legislature? What if the people of the state resisted? Would they call up the National Guard and have them enforce Martial Law? Would they round up people and put them into Internment Camps? What if the National Guard refused to follow their orders? Would they send in the Army?
Do the states have a right to refuse “laws” that violate the Constitution?
If the Constitution is a contract among the several states, as the founding fathers understood, what is the remedy to violations of the contract? As any good lawyer will tell you, three remedies are available to the injured party when a contract is violated. First, you could take the party that breached the contract to court and obtain monetary damages. Second, a court could order the defaulting party to the contract to perform his contractual obligations. And finally, “rescission,” or annulment of the contract, the contract is canceled. The aggrieved party would ask the court to make them whole again by returning them to the same condition that they had before they entered into the contract.
For a state, that finale or third option for a broken contract is secession. If the Constitution is what the founders believed it to be when they wrote and ratified it—an agreement—a compact—a contract, then the states as aggrieved parties to the contract have every right to “walk away” from the contract and return themselves to their previous status.
Was this an option, rescission or secession, something that was even discussed at the time of the ratification debates? Clearly, it was understood that nothing is forever and that if this new Constitution and the government that would be formed should violate the states or the people’s rights; they would be no longer bound by it. But the clearest examples of their thoughts on the subject are found in the Constitutional ratification debates of each state. Listed below are the best examples.
This was declared by Virginia in the ratification debates: “We the delegates of the people of Virginia, duly elected…do, in the name and 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.” (Emphasis added)
And further New York declared: “That the powers of government may be resumed by the people, whensoever it shall become necessary to their happiness; that every power, jurisdiction, and right, which is not, by the said Constitution, delegated to the Congress of the United States, or the departments thereof, remains to the people of the several states, or to their respective State governments, to whom they have granted the same.” (Emphasis added)
Finally, Rhode Island declared in a copy of New York’s statement: “That the powers of government may be resumed by the people, whensoever it shall become necessary to their happiness.” (Emphasis added)
But even prior to the Constitution, the founders declared in the Declaration of Independence:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to 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.”
Again, the founders dissolved their union when the Articles of Confederation and Perpetual Union no longer served their needs. Please note that the full name includes Perpetual Union, which obviously was not perpetual as nothing truly is. The founders did not even bother to include Perpetual Union or anything close to it in the new Constitution for obvious reasons.
It should also be obvious that the founding fathers would never have agreed to be bound together in perpetuity and forced to suffer the repeated violations of the Constitution and by extension there rights as sovereign states. They understood contract law and the remedies they had if the new federal government should violate that contract.
Most people will now point to the “Civil War” as settling the issue of secession, but did it? Yes, the Confederate States lost their bid to become a separate nation alongside of the United States. But does force validate a contract? Lawyers will tell you that if you are forced through threats, intimidation or at gunpoint into a contract that contract is not valid.
So, do I think that secession is in anyway something that is contemplated by states? No, I do not. Nor do I think that option two “forcing the defaulting party in this case the federal government to live up to the contract, the Constitution” is being pursued as much as it should be. For a state to force the federal government to do anything would be very difficult but by nullifying the unconstitutional “law” or regulation they have placed the feds on notice that they have exceeded their authority. And if enough states nullify the law, the feds are powerless to enforce it. The best example is the Real ID Act signed into law in 2005, essentially, it is “null and void” because a majority of the states refuse to comply. Is this not the answer to how to treat all unconstitutional laws, just nullify and ignore them?
Regardless of who is elected this fall, the federal government will continue to grow and with it demands on the states and citizens to submit to further loss of freedoms. This leads back to my questions at the beginning; What if the federal government passes a “law” and everyone ignores them? What if a state said it no longer would comply with the EPA, HUD, DOE, DOT, etc. etc.? What if multiple states refused to comply with federal rules, regulations and “laws”?
Will the federal government resort to force to maintain its control? If they do, will the states reconsider the use of rescission? Will some or all secede?
Will the Union break up into smaller federations of states?
Is the federal government’s quest to consolidate all power in Washington, DC actually only succeeding in driving us further apart?
Is the United States too big to fail?
Or is it too big to succeed?
As a final thought, in a recent poll 24 Percent of Americans Believe States Have a Right to Secede shows that secession, as a possibility is growing, up 10% in the last 2 years. Do any of the recent actions by the federal government cause you to believe that those poll numbers will go down anytime soon?
originally published at the North Carolina Tenth Amendment Center