SECESSION: Does a State Have the Right to Secede from the Union?

 by Diane Rufino, Sept. 6, 2011


So, seeing that people were generally interested in that question, I thought I would use that topic as the one I’d review here.  Besides, the topic of secession is one that necessarily talks about States’ rights and State sovereignty and those issues are very important right now, especially seeing that our government has become a runaway train.


But nowadays, when we think of secession, we think back to the Confederacy and the Civil War.  We think of the decision to sever relations with fellow states. Currently, some think of such a decision not out of any animosity to fellow states, as it was prior to the Civil War, but as the only way to sever the relationship and dependency on the federal government.

The Southern states seceded in 1860-61 essentially because of slavery.  If it weren’t for slavery, the bigger issue of States’ rights wouldn’t have asserted.  Slavery was indeed an immoral and unjust institution.  It is sad to think that people can treat fellow human beings as nothing more than property.  But it was the bigger issue of State’s rights that we must consider when we examine the Southern States’ position with respect to secession and then the response by President Lincoln.






Personally, when referring to matters of liberty and the Constitution, I find it offensive to hear people use terms such as “the ends justified the means.”  It simply means they don’t value the rule of law as laid down by our Founders.  FDR had this mentality. Lincoln had this mentality.  Even Teddy Roosevelt had this mentality.  And most of all, Barack Obama embraces this mentality.  Those who wrote and adopted legislation to “punish” the states had this mentality.  Those who now seek to target white Americans – “Rightwing Extremists” (under the Patriot Act and “See Something, Say Something” Act)  – as those who pose the greatest danger to the country, rather than radical Islamists have this mentality.  Those who praise Bill Ayers and the Weather Underground for killing innocent public servants and family men but condemn Timothy McVeigh as the worst domestic terrorist of all time have this mentality.  Those who blame the rich for all the woes of the country and demand that they pay the bulk of taxes as their “patriotic duty” have this mentality.  And even those, like NYC Mayor Bloomberg, who seek to deny clergy at the 9/11 ceremony because he doesn’t believe a religious presence should be involved (separation of church and state?) have this mentality.  Each instance perverts a fundamental principle of law upon which our country was founded.  As Sarah Palin once asked: “How’s that working out for you?”








In this review, I’ll talk about the various theories that come into play when we talk about secession, what our Founders thought about it, what Abraham Lincoln himself had to say, and finally, what the Supreme Court had to say.  I think that will give us a lot to think about.  Then we can move on to talk about current state sovereignty issues, such as healthcare, immigration, the Repeal Amendment, and current movements to repeal the 17th Amendment.  Although I hope readers will appreciate the critical review of Lincoln’s decision to invade the Southern Confederacy which I’ve attempted, perhaps moreso, I hope the review of secession in general will help them better focus on the issues involved in these bitterly-debated current topics, and even in many others (such as Agenda-21 and the UN Small Arms Treaty).   I hope readers will have a better appreciation for these issues, including those of:

(i)  States’ Rights and State Sovereignty;  and the need for a robust federalist system to curb the powers of the federal government;




QUESTIONDo you think a State has the right to secede from the Union ? 

I ask this just to get you thinking of your personal position on the topic.  While you are at it, reflect upon the reasons for or against it, as you believe them to be.
































QUESTIONWhat does the word “Secession” mean ?




QUESTIONWhat did our Founders say about secession?  What about our founding principles?









QUESTIONWhat is the purpose of a constitution?



QUESTIONWhat is a “social contract”  (or “social compact”)?









QUESTIONHow can the social contract / compact be dissolved?












QUESTIONDoes a State have the legal authority  to secede from the Union?





QUESTIONWhich was the first state to secede from the Union?






















Secession  –


  • For Quartering large bodies of armed troops among us:
  • For imposing Taxes on us without our Consent:












So strongly did Lincoln believe this that he stated as such in his first in augural address: “I hold that in contemplation of universal law and of the Constitution the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination.”





















16).  Lincoln also claimed legal authority to invade the South based on the Guarantee Clause.  As with the Supremacy Clause, the Guarantee Clause only applied to a state that is in the Union.
















QUESTIONWhat reasons did the Southern States give for secession?



















QUESTION:   Didn’t the Supreme Court settle the question of secession in Texas v. White, 74 U.S. 700 (1869)?













Chief Justice Chase wrote:





















–>  Marbury would support the notion of a strict reading of the Constitution (which is silent on the issue of secession).  As James Madison explained: “Every word of the Constitution decides a question between power and liberty.”



QUESTION:  What are states currently doing about States’ rights?

–>   Direct Challenges to Immigration and Healthcare

–>   Nullification Schemes (including the Repeal Amendment to the US Constitution)

–>   Repeal of 17th Amendment (Rick Perry is talking about this;  also, Tea Party is expected to force this issue)

–>  Embracing the Tea Party movement (limited government; States’ rights)

(A).  On March 24, 2010, Virginia signed into law the Healthcare Freedom Act. 

1).  It protects its citizens from being forced to purchase health insurance or participate in any health care system against their will.

2).  It is a “nullification” bill.

3).  Virginia was the first state to pass such a law (It is believed that 38 states have or still plan to do so;  Governor Perdue vetoed the NC Healthcare Freedom Bill)

4).  On March 23, Virginia’s Attorney General Ken Cuccinelli filed a lawsuit against the government challenging the legality of the health care legislation (Obamacare).  The lawsuit claims Congress exceeds its powers under the Commerce Clause.

5).  The VA Healthcare Freedom Act provided “standing” to challenge the Individual Mandate.  Cuccinelli argued that the state of Virginia, as a valid exercise of state power under the 10th Amendment, has the right to regulate healthcare for its people and the federal government has no such constitutional power to compel citizens to do so under the Commerce Clause.

6).  Cuccinelli is an activist state Attorney General who filed the lawsuit to challenge the power of the Congress under the Commerce Clause.


–  Cuccinelli vows to fight to restrain the federal government, which he calls “the schoolyard bully across the Potomac.”

–  He doesn’t hide his disdain for the Obama administration.  He says: “They have no respect for the law, for the Constitution, no respect for the states.  And no respect for the courts.”

–  He believes States’ Attorney Generals have a huge responsibility.  “They are the last line of defense when there are no principle protectors of the Constitution.”

–  He believes they must step up on behalf of their states and states in general to restrain the federal government.

–  As Frank Choderov wrote in 1952: “If for no other reason, personal pride should prompt every governor and state legislator to take a secessionist attitude. They were not elected to be lackeys of the federal bureaucracy.”

And all States should take sides with Attorney General Cuccinelli or with Florida and the 26 other states challenging the federal healthcare bill. This is not only a matter deeply entrenched in a States’ sovereign powers but it is such an offensive intrusion in an individual’s life and affairs that that it is exactly the type of violation of individual liberty that a State was expected to protect against.  The balance of power established explicitly by the 10th Amendment was to keep power over the individual closest to them…  that is, with the states and local governments.

To appreciate how scary the government’s position is with respect to its right to mandate compliance with its healthcare scheme, just look at the decision it is basing its defense of the healthcare bill on –  Wickard v. Filburn.

In 1942, in a case known as Wickard v. Filburn, the government won a great battle in having control over private property.  [The 16th Amendment income tax decision –Brushaber v. Union Pacific Railroad (1916) – was another huge victory, but that’s a topic for another day].  Wickard v. Filburn was one of the scariest decisions handed down by the Supreme Court, the justices read a greatly enlarged grant of Congressional power into the Commerce Clause, in contradiction to our Founding Fathers. The case addressed the constitutionality of the second Agricultural Adjustment Act of 1938, which was part of FDR’s New Deal. The Act empowered the federal government to set quotas and prices for agricultural products moving in interstate commerce, presumably to help farmers suffering from both the Depression and the dust bowl weather cycle of the mid-thirties, as well as to insulate consumers from price-gouging.  Filburn was one such a farmer.  He essentially was a dairy farmer who maintained a small dairy herd and some chickens on his Ohio farm.  He sold milk, poultry, and eggs on the open market.  He also planted feed for his livestock, including a small patch of wheat to feed the chickens, and to grind into flour for his own use. None of the wheat left his farm.  Unfortunately he made the mistake of planting 12 acres more than the federal quota allowed in 1941.  From this additional 12 acres, he collected a harvest of 239 bushels, which he consumed all on-farm.  He was penalized 49¢ per bushel by the government, which represented a “tax” rate of about 57% of that year’s average market price.  Enraged, and believing that the government is only entitled to regulate items that go across interstate lines, Filburn sued. He challenged the Act on the basis that the Commerce Clause did not empower Congress to regulate crops that were used for personal consumption and never left the farm (never entered interstate commerce).  The government’s position was that it had broad power under the Commerce Clause, including the power to fine (tax) surplus farm production.

Unfortunately, by 1942 when his case made its way to the U.S. Supreme Court, the judicial composition made it the most progressive Court of the 20th century.  The Court included such justices as Hugo Black, Harlan Stone, William Douglas, Felix Frankfurter, and Robert Jackson.  All but one justice had been appointed by President Roosevelt and the Court was clearly in his corner philosophically. Their unanimous decision in this case reflected the New Deal’s premise of unfettered government regulation.

Writing for a unanimous Court, Justice Robert Jackson (who would later serve, brilliantly and  eloquently, as chief prosecutor at the Nuremberg War Crimes Tribunal) held that even un-marketed excess production has an effect on interstate commerce.  As such, it can (or could) be regulated under the federal government’s commerce power, granted in Article I, section 8 of the Constitution, which permits Congress to “regulate Commerce . . . among the several States.”  Filburn’s excess production, of itself, was insignificant, but when combined with other un-marketed excess wheat production, it had a clear impact on interstate commerce.  Jackson wrote: “The maintenance by government regulation of a price for wheat undoubtedly can be accomplished as effectively by sustaining or increasing the demand as by limiting the supply….  That Filburn’s own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, taken together with that of many others similarly situated, is far from trivial.  Congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing [the Second Agricultural Act’s purpose to stimulate trade at increased prices.”  The rule laid down by Justice Jackson is that even if an activity is local and not regarded as commerce, it may still be regarded as such if, in the aggregate, it exerts a substantial economic effect, whether directly or indirectly, on interstate commerce.  [This, by the way, is the very argument that the government is using to defend the Individual Mandate in the Patient Protection & Affordable Care Act, or Obamacare].

In simple terms, this is what the case boiled down to…  Farmer Filburn grew wheat that he intended only for his own use, either for his family or to feed his animals.  That wheat never “entered” the flow of commerce.  It never crossed a state line, let alone even a county line.  Ownership and control of property was one of the fundamental human liberties our Founders sought to protect from the reach of government.  In fact, government was understood to be morally obligated to protect it, just as its owner would be allowed to protect it in the absence of government.  For ownership of property to be complete, the “bundle of rights” associated with that property would include those to title, control, use, and ability to dispose.  Those who’ve studied property law will remember the notion that owners of property (outright ownership) are entitled to the full and most beneficial use of their property – of course subject to the rule that their use and enjoyment doesn’t burden another’s use and enjoyment of their property (nuisance, for example).  What the Supreme Court said in this case, in its convoluted reasoning, is that if Farmer Filburn hadn’t grown that extra wheat, then he would have gone to the market and purchased it. Then he would have been actively involved in commerce.  In other words, the Court was saying that the government can compel a person to become actively involved in the flow of commerce.  If that isn’t scary enough, ask yourself this: Why should the government require you to purchase from another what you can grow or produce yourself?

The fact is that the progressive Court had long considered the implications of the Commerce Clause and how broadly it should be interpreted. Consider how sharply the Court changed their views from year 1935 to 1942.  In 1935, in the case, Schecter Poultry Corp. v. United States, a constitutional challenge was presented to FDR’s National Industrial Recovery Act which empowered the President to implement industrial codes to regulate weekly employment hours, wages, and minimum ages of employees.  The Supreme Court struck the law down as exceeding the powers delegated to Congress and to the President.  Writing for the unanimous Court, Chief Justice Hughes said: “The delegation of legislative power sought to be made to the President by § 3 of the National Industrial Recovery Act of June 16, 1933, is unconstitutional.  Congress is not permitted by the Constitution to abdicate, or to transfer to others, the essential legislative functions with which it is vested. The Act itself is also unconstitutional because it exceeds the power of Congress to regulate interstate commerce and invades the power reserved exclusively to the States…  If the Commerce Clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people, and the authority of the State over its domestic concerns would exist only by sufferance of the Federal Government. Indeed, on such a theory, even the development of the State’s commercial facilities would be subject to federal control.”  [Schecter, pg 546].  Hughes prefaced the decision by noting:  ”Extraordinary conditions, such as an economic crisis, may call for extraordinary remedies, but they cannot create or enlarge constitutional power.”  This comment particularly irritated the President. If the high Court was going to strike down his New Deal legislation, then he would replace the “nine old men” of the Court whose view of the Constitution reflected the “horse and buggy days,” through legislation.  In fact, he proposed a bill which would require that for every Supreme Court justice who refused to step down when he reached the age of 70, one additional justice would be appointed.  (6 justices were age 70 or older at the time).  Debate over the bill was intense and it was eventually rejected.

In response to the Schecter decision, FDR uttered these words in a press release on May 31, 1935: “Are we going to take the hands of the federal government completely off any effort to adjust the growing of national crops, and go right straight back to the old principle that every farmer is lord of his own farm and can do anything he wants, raise anything, any old time, in any quantity, and sell any time he wants?”

In 1939, in the case Currin v. Wallce, the Supreme Court hinted that Congress’ power under the Commerce Clause is plenary or complete.  The Court further suggested that Congress could extend its power over virtually any area that might contribute to the “General Welfare.”

The Supreme Court continued to debate the proper interpretation of the Commerce Clause and the proper classification of “indirect” activities for purposes of the Congress’ reach with respect to interstate commerce.  It asked whether the Commerce Clause allows Congress to regulate only goods that move through interstate commerce or whether it allows for the regulation of production and the means of production as well.  Seeming to abandon the rule set down in Schecter and moving towards the expansive view reflected in Currin, the Wickard Court finally settled that debate.

After the Wickard decision, economic situations would determine the extent of federal regulation. The case shows he growing willingness of the Supreme Court through the years to lend support to congressional efforts by offering an expansive reading of the Commerce Clause.  (The Court also uses the two key clauses of the Fourteenth Amendment – the Equal Protection Clause and the Due Process Clause) in much the same way.

And as explained above, not only was the Supreme Court’s expansive reading of the Commerce Clause in Wickard an insult to the American people, but equally disturbing was its the position on an individual’s right to use, enjoy, and benefit from his or her own land.

(B).  Arizona has taken the lead in challenging the federal government on Immigration.  For Arizona, immigration is a matter of state security and safety.

1).  On April 23, 2010, Arizona passed S.B.1070, a broad and strict immigration measure which would make the failure to carry immigration documents a crime and give the police broad power to detain anyone suspected of being in the country illegally.

2).  The bill followed the cold-blooded shooting death of a local rancher by illegal drug smugglers

3).  AZ’s illegal immigrant population nearly doubled in less than a decade, with a huge increase in associated illegal violence.

4).  A similar bill was vetoed by the former AZ Governor, Janet Napolitano

5).  AZ accused the government of not enforcing federal immigration laws

6).  John Morton, Obama’s head of Immigration and Customs Enforcement (under Homeland Security), said his agency would likely not process suspected illegal immigrants referred to it under S.B.1070.

7).  Poll after poll shows that the citizens of Arizona and America support S.B. 1070 by at least a 2-1 margin

Stand Down with the Federal Government –

1).  On April 23, 2010, US Attorney General Eric Holder filed suit against Arizona to block S.B.1070

2).  He threatened to file a second lawsuit challenging that its provisions amount to unlawful “racial profiling.”  (depending how the first one plays out)

3).  The government intended to declare S.B.1070 invalid and to preliminarily and then permanently enjoin its enforcement.

4).  It asserted that S.B.1070 is preempted by federal law and therefore violates the Supremacy Clause of the United States Constitution.

5).  On July 28, 2010, Judge Susan Bolton found in favor of the government’s position and blocked most of the key provisions of S.B.1070

6).  On April 16, 2011, the federal Court of Appeals for the 9th Circuit affirmed the decision.  [the 9th Circuit is the most liberal of the 13 federal appellate courts and one of the most activist in the nation.  It held the Pledge of Allegiance to be unconstitutional]

7).  Governor Brewer intends to fight on and take the case to the Supreme Court under a States’ rights argument (10th Amendment)

The 9thCircuit Hands Down an Activist Decision Against the Rights of AZ  –

1).  The decision went as far as to cite the views of anti-American dictators as a justification for holding against S.B.1070



4).  The idea that the S.B.1070 will affect our relationships with these countries is preposterous.

5).  Judge John Noonan wrote a concurring opinion against Arizona in which he argued that S.B.1070 would upset our relations with Mexico, which he called a “policy…of cordiality, friendship and cooperation.”  Really?

[Senator Russell Pearce, “9th Circuit Court of Appeals’ S.B.1070 Decision Demonstrates Contempt for Constitution,” Intellectual Conservative, April 16, 2011]

Repeal of the 17th Amendment  –

The 17th Amendment states:


1).  The 17th Amendment altered the wording of Article I, Section 3, clause 1, which read: “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six years, and each Senator Shall have one vote.”

2).  Originally, each Senator was elected by his state’s legislature to represent that state in the Senate.

This was intended to protect each state’s power within the federation established by the Constitution by having its own direct representation in the Congress.

3).  The amendment was adopted in 1913.

4).  The 17th Amendment was a slap in the face to the States and to States’ rights.

5).  Texas Governor and Presidential hopeful Rick Perry is talking about repealing the 17th Amendment and also there is talk that the Tea Party will try to force this issue


Since the enactment of the 17th Amendment, the states have been reduced from an equal l partner with the federal government to a common lobbyist, which has resulted with the loss of state sovereignty, loss of state rights, and a host of federal mandates some of which are funded and some which are not (requiring tremendous state resources the states don’t have).  Such mandates include the No Child Left Behind Act, Medicare, Medicaid, and Obamacare.

The Repeal Amendment  —

The Repeal Amendment, sponsored by Senator Mike Enzi (R-WY) and Rep. Bob Bishop (R-UT) and introduced on May 15, 2011, would basically give states a veto over Washington.  It is the brainchild of distinguished Georgetown Constitutional Law Professor Randy Barnett. The amendment states:

“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for the purpose that particularly describe the same provision or provisions of law or regulation to be appealed.“

The Amendment was inspired by Barnett’s April 2009 article in the Wall Street Journal, which described Constitutional remedies for taking our country back. The Amendment was publicly proposed for the first time on September 15, 2010.  Just two months later, it gained the support of prominent legislators in nine states: Virginia, Utah, New Jersey, Georgia, Texas, Minnesota, Florida, Indiana, and South Carolina. Virginia has led the way with support from Governor McDonnell, Attorney General Ken Cuccinelli, House of Delegates Speaker Bill Howell, and Lieutenant Governor/Senate President Bill Bolling, in addition to US Representative Eric Cantor.


Since the Repeal Amendment has been proposed, it has gotten a lot of attention.  On November 23rd, Professor Barnett and Virginia House Speaker Howell went on Fox Business News to discuss the proposal with Fox News’ Senior Legal Analyst, Judge Andrew Napolitano. Napolitano was ecstatic about the idea.  He said, “This sounds almost too good to be true, if it could happen. We wouldn’t have unfunded mandates; the Tenth Amendment would reign supreme; the states would be sovereign within their own borders…”  But he also shared some concerns, one of them being the difficulty in adding a constitutional amendment (which was the very intent of our Founders in adding Article V).


1).  Both Houses of Congress agree to propose an Amendment with a two-thirds majority vote.


In both cases, the amendment must be ratified by three-fourths of the state legislatures (= 38 states).

Some of Napolitano’s other concerns include the uncertain nature of state Amendment Conventions and the willingness of Congress to vote against its own interests.  In his interview, the Judge asked: “If it turns out the states are successful in suing for an Amendment Convention, would it become a ‘runaway Convention’?” (by this, he means that once the states call such a convention, nothing is off the table. They can discuss anything).   He also asked whether Congress in fact would bring the Amendment to the floor of Congress being that it so boldly confronts their power.

In addressing the concern about Congress’ potential hostility, Delegate Howell responded that if such an amendment is requested by two-thirds of the states, Congress has no choice in the matter.  He acknowledged the influence that Tea Party groups have had on the attitudes of many in Congress, especially regarding fiscal conservatism and limited government.

Supporters of the Amendment Supporters are optimistic, saying the time has come for States to take back the power Congress has increasingly usurped.  And maybe, just maybe, they are right.

QUESTIONWhat ekse can the States  do?

–>  Nullification and peaceful secession are the only true means of returning to a system of government that respects rather than destroys individual liberty.  A return to an era of strong sovereign states is the answer to reigning in the size and control of the federal government.

A 2008 Zogby International poll revealed that 22% of Americans believed that “any state or region has the right to peaceably secede and become an independent republic.”  Some have argued for a constitutional right of secession and others have claimed for recognition of a natural right of revolution. Adopting a Constitutional amendment at this point in our history might seem unlikely because most citizens, through the indoctrination they receive in the public school system, believe the Civil War decided the issue of secession once and for all.  (it will not be tolerated).  In White v. Texas, the Supreme Court held that unilateral secession is not allowed but noted that revolution or consent of the states could lead to a successful secession.

First, let’s be clear about what the Constitution says or doesn’t say.  The power to “negate secession” or “prevent secession” is not a power, either expressly or implicitly, delegated to the federal government.  It is not a right prohibited to the States.  Therefore, under the 10th Amendment, States retain the right to secede and sever their bonds with other states to be governed under the dictates of the US Constitution and the federal government.  Questions of fundamental rights and constitutional law cannot be settled on a battlefield. The only thing that the Civil War proved was that the stronger Army defeated the weaker Army and exercised its spoils of victory to violate the Constitution and the natural rights of the defeated States.

Let’s review what happened with the Civil War – with a broad overview .  On May 27, 1861, the army of the United States of America invaded the sovereign state of Virginia, which had submitted its Declaration of Secession earlier that month, in a forceful effort to “negate” that secession.

Four years later, and with 620,000 Americans slaughtered, the United States defeated the Confederate States of America, forced the states back into the Union, and thus, negated the secession their secession. The government forced a series of “conditions” on the defeated states before they would be formally re-admitted to the Union, including ratification of the 14th Amendments, establishment of new state constitutions, execution of  oaths of allegiance to the Union, disqualification of former Confederate officials from office, and the guaranteeing black males the right to vote. President Andrew Johnson saw the Reconstruction Act as “absolute despotism,” a “bill of attainder against 9,000,000 people,” and vetoed it on March 2, 1867.  [Bill of Attainder = A legislative act that singles out an individual or group for punishment without a trial].  In his veto message, he stated that “such a power had not been wielded by any Monarch in England for more than five hundred years.”

The Civil War ended the immoral institution of slavery, but it left the South in economic ruins, set the stage for 12 years of oppressive military rule, and left a segment of our country still suffering from the bitter experience of trying to exert their independence.  While slavery was clearly on Lincoln’s mind, especially when he figured out he could use it to energize the abolitionist movement and incite slaves to fight for their freedom and therefore further the North’s position in the War, he had very little concern and respect for other fundamental liberties – the ones our Founders specifically listed in the Declaration of Independence as being secure in our new nation.  Freedom against unlawful detention and the right of habeas corpus and freedom from government confiscation of property are just a few.  Of course Lincoln showed the most callous disregard of all for the guarantee  ”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…”

[See Ex parte Milligan (1866) a case challenging one of Lincoln’s unlawful detentions.  Lambdin Milligan and four others were accused of planning to steal Union weapons and invade a prisoner-of-war camp containing Confederate soldiers.  They hoped that once the first prisoner of war camp was liberated,  the liberated soldiers would take up arms and help free other Confederate soldiers from their prisoner camps.  The plan was leaked and Milligan and the others were charged, found guilty, and sentenced to hang by a military court in 1864.  President Lincoln enacted a wartime statute suspending the privilege of a writ of habeas corpus in those cases where military, naval, and civil officers of the United States ‘hold persons in their custody either as prisoners of war, spies, or aiders and abettors of the enemy, . .”   Milligan, thus, was unable to challenge his detention and sentence.  Luckily, the execution date was not set until May 1865 and so once the War was over, Milligan was given a chance to challenge his denial of habeas corpus.

Although the Court held that Congress has the power to pass severe measures in time of war, this particular instance was unconstitutional.  Chief Justice Salmon Chase, writing for the majority, wrote: “Where peace exists the laws of peace must prevail.  What we do maintain is, that when the nation is involved in war, and some portions of the country are invaded, and all are exposed to invasion, it is within the power of Congress to determine in what states or district such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offences against the discipline or security of the army or against the public safety.”  In the end, the Court held that the prohibition against unlawful detention by the US Constitution is such a valued fundamental right and one which has the greatest potential to be abused in wartime, that such trials of civilians by presidentially-created military commissions are unconstitutional.  Martial law cannot exist where the civil courts are operating. In Indiana (where Milligan and the others were arrested), as well as in the rest of the Northern, the US Constitution was still upheld and recognized as supreme law and so civil courts were operating.

As a result of Lincoln’s suspension of habeas corpus and the resulting policy of arbitrary arrests, an estimated 13,000 civilians were seized and confined on the suspicion of disloyalty or of being sympathetic to the Southern cause]

The Civil War resulted in a tremendous expansion of the size and power of the federal government.  It gave us our first federal conscription law, and our first progressive income tax (to pay for the debt created by the war), for example.  It gave us the 14th Amendment (which would be used to neuter the 10th Amendment) and a whole host of Civil War legislation. Social reform was right down the road.  In his book Our Enemy (1950), Albert Jay Nock wrote:  “The doctrine of ‘reserved powers’ was contrived ex post facto (after the fact) as justification for his acts, but as far as the intent of the Constitution is concerned, it was obviously pure invention, In fact, a very good case could be made out for the assertion that Lincoln’s acts resulted in a permanent radical change in the entire system of constitutional ‘interpretation’ – that since his time ‘interpretations’ have not been interpretations of the Constitution, but merely of public policy….  A strict constructionist might indeed say that the Constitution died in 1861, and one would have to scratch one’s head pretty diligently to refute him.”

Since the Civil War, there have been two main legal developments which might appear to impact secession:  (1) the amendment of several state constitutions to prohibit secession and  (2) the passage of the 14th Amendment.  While under military occupation and control, the states of Virginia, North Carolina, South Carolina, Florida, Mississippi, and Arkansas each established new state constitutions which contain a clause prohibiting secession.  Once these states did so, federal military troops were withdrawn.

Legally, the clauses prohibiting secession cannot serve to invalidate a state’s right to secede from the Union.  There are several theories to support his:

(i)  First, the clauses were added under duress.  They were forced as a means of punishment and submission. Duress is a valid and recognized defense to contract enforcement.  This fundamental principle of contract law states that a contract made under duress is voidable at the election of the aggrieved party.

(ii)  Second of all, no contract can deny an inherent right of self-preservation.  For example, no contract can deny a person his right to seek any available treatment for a life-threatening illness or condition.

(iii)  These states mentioned above have the opportunity at any time to amend their constitutions and eliminate the secession clause.  If they choose not to do so, it doesn’t mean they are acknowledging that they no longer have the “right.”  It simply means that they are not choosing to “exercise” that right at the present time.   The right still exists.  It always has and always will.

(iv)  All states have equal rights in the Union.  The fact that other states have not relinquished their right to secede means that the Southern states are also recognized as having that right.

The 14th Amendment shouldn’t pose a problem since a State that secedes from the United States has no duty to recognize the US Constitution.  The problem might come in with Section 1 which reads: “…… No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…”  (The Privileges and Immunity Clause of the 14th Amendment).  If we were to ever have another President like Abraham Lincoln, he might use this Clause to re-establish the rights of the people to the privilege and immunities of the United States.

But the point to remember is that once the government exceeds its bounds, as established by The People under the Constitution, or assumes powers not delegated to it by the “consent of the governed,” then the government technically becomes void and non-binding on the States and the people.  We don’t need the Supreme Court to tell us its interpretation of the Constitution.  We have the very words and writings of the very men who drafted our Constitution and created our government.


So what does this all mean?  Should the States and American people consider repealing the 14th Amendment, or at least parts of it?   Personally, I would support such a repeal.  The 14th Amendment was passed to make sure that hostile states did not discriminate against the newly-freed blacks. It was passed so that they would be treated equally under the law and would enjoy all the privileges of US citizenship.  We live in a color-blind society today.  Racial equality has been reached, despite what Reverend Al Sharpton, Jesse Jackson, Maxine Waters, and other race-baiters like to argue.  Equal opportunity exists.  Equal protection exists.  And so, there is no more reason for the States to suffer under the 14th Amendment.  The 14th Amendment has taken a huge area of regulation away from the States on behalf of their citizens. The states have inherent police powers (to regulate for the safety, health, welfare, and morality of its citizens) which have been neutered by the 14th Amendment. Allowing the individual states to regulate locally provides a variety of solutions to common problems – a virtual free market of ideas.  Competition among states has the tendency to improve the quality of life for everyone.

Additionally, the 14th Amendment has provided the federal courts with an enormous opportunity for abuse.  In addition to the de facto grant of legislative and executive power to judges, the 14th Amendment includes a de jure grant of power to Congress. Section 5 reads:  “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”  Conduct in one state is often imputed to the other states.  Since the Brown v. Board of Education decision(1954; decided under the Equal Protection clause of the 14th Amendment), equality before the law has shifted effortlessly into forced equality of outcome.

While we the people were being overwhelmed and distracted by a rapidly increasing government, a slew of progressive and activist Supreme Court decisions, and an enlarging entitlement mentality, government usurped our power.  The servant has become our master.

Nullification and peaceful secession are the only means of returning to a system of government that respects rather than destroys individual liberty.  But secession is a desperate solution and therefore should be a measure of last resort. Nullification, therefore, is the course that the States and the people should pursue.  A return to an era of strong sovereign states is the answer to reigning in the size and control of the federal government so that our system resembles the one envisioned by our Founders.  It is the only way to “restore” our nation from the fundamental transformation that been in place since the Civil War.  (A person “transforms” something that he isn’t happy with but “restores” some that has great value).  Our Founders came up with a unique and special formula to enhance and maximize individual liberty and the government has found a way to re-figure it.

States should, among other things, do the following:

1).  Support the Repeal Amendment

2).  Repeal the 17 Amendment

3).  Challenge federal laws and executive action that exceed the powers granted by the US Constitution

4).  Scrutinize acts of Congress and actively pass nullification bills (exempting its citizens from being subject to them)

5).  Decline federal funding.  (and for every State that adopts such a policy), then it should demand that its citizens be afforded a tax credit on their federal income tax because citizens of one state should not be funding projects for another state).

6).  Support a Constitutional amendment that requires that federal court judges to cite the Founding Fathers or Ratifying Documents to support the meaning, intention, and spirit of the Constitutional provision at issue.

7).  Repeal any clauses in their state constitutions prohibiting secession (Stand up for your rights !!)

The People should, among other things:

1).  Become educated about their Constitution and read what our Founders had to say about it

2).  Become engaged in the election process, especially in the vetting of candidates

3).  Elect candidates that support States’ rights (local and federal)

4).  Research all judges that are running for judicial positions and elect only those who are “strict constructionists”

4).  Challenge federal laws that exceed Congressional authority under the Constitution and invade the states’ lawful sphere of regulation.  [See Bond v. United States, 564 U.S. __ (2011);  Individuals have standing to challenge a federal statute that legislates beyond the federal government’s enumerated powers and interferes with the powers reserved to States.  Individuals have standing because the proper division of sovereign power between the States and the federal government (= federalism) serves to protect and secure individual liberty].

North Carolina, my home state, still has the secession prohibition clause in its state constitution:


This clause is an insult because it bears the mark of punishment and shame. It reflects a defeated spirit and a defeatist attitude.  A proud state, a strong state doesn’t publicly announce to the world that it will forever blindly follow a tyrannical central government.

QUESTIONWhat is Agenda-21 and should the States be concerned?

–>  Agenda-21 is a massive land regulation initiative. Yes, the States should be concerned.  Agenda-21 will impose hugely burdensome and expensive regulations on private landowners to live sustainably with respect to natural resources and the hyped-up anti-global warming movement.  States should defend the rights of its citizens to own and enjoy their property (as long as they don’t burden the rights of others in doing so).

Agenda-21 will eventually impact private land development in every state in the United States. Agenda 21 is a UN initiative on sustainable land development, adopted by more than 178 Governments at the United Nations Conference on Environment and Development (UNCED) held in Rio de Janerio, Brazil, in June 1992 and then reaffirmed at the World Summit on Sustainable Development (WSSD) held in Johannesburg, South Africa in August-September 2002.  It is a comprehensive plan of action to be taken globally, nationally and locally by organizations of the United Nations, governments, and major groups in every area in which humans impact on the environment.  It will involve massive regulation and will be implemented through ICLEI, a network of local governments committed to sustainability. So far, there are 10 cities or counties alone in my state of North Carolina which have joined ICLEI to implement sustainability measures locally –  Asheville, Carrboro, Cary, Chapel Hill, Charlotte, Chatham County, Durham, Orange County, Raleigh, and Winston-Salem.

Add this new level of regulation on top of the Food Safety Bill, supported by our North Carolina’s own Senator Richard Burr (booo!!), which just granted the Food and Drug Administration (FDA) new powers (just what it needs) to regulate farm land and the farming industry. The Food Safety Bill will already do incredible harm to farming in NC.  Farmers and others to make a living off the land cannot absorb any more regulation and continue to survive?  What is private property worth when the means to control it, enjoy it, and use it for its maximum potential are destroyed by onerous government regulation?


People need to keep their ears open for initiatives in their counties that incorporate the typical buzz words: “sustainability,” “green,” “recycle,”  etc.

QUESTIONShould the States be concerned with the bloated size of the federal government?

–>   Yes.  The government was intended to be one of limited powers and responsibilities. The bulk of the powers were to remain with the people and the States, so that individuals could truly enjoy and benefit from their God-given liberties.  Currently, there are 473 government departments and agencies, many which are duplicative.  [See:]   The current trend is for the federal government to ignore the responsibilities it was initial vested with (such as Immigration and National Security) and to insinuate itself in all state and personal affairs.

According to Madison, the idea was to keep the power base close to the people.  The emphasis was on strong local self-government. The states would be responsible for internal affairs and the federal government would confine itself to those areas which could not be fairly or effectively handled by the states (such as raising an army, providing a Navy, regulating Commerce among nations and among the several states, raising revenue, regulating money, and establishing rules for Naturalization and Immigration).  Power closest to the people is almost most responsive to the people.

It is said that there is so much government regulation that at any given moment, each of us is violating one law or another.  It’s not because we simply can’t abide by all the laws (which perhaps we can’t), but it’s because the laws are so numerous and so volumnous that we simply can’t keep up.  John Locke warned us about allowing the government to regulate too much and to make too many laws.  When laws become too numerous and detailed, they can destroy liberty just as surely and effectively as having no law.


QUESTIONShould the States be concerned about the growing “Nanny State” ? 

–>  Absolutely.  The government taxes individuals excessively – to fund big government and to “condition” and control states through federal grants and subsidies.  States accept government funding and its conditions because they can’t raise enough state funds to do everything it needs.  They can’t raise enough state funds because they know that individuals are already taxed excessively by the federal government and they can’t burden their residents with increased state taxation.  Money that is kept local is most easily controlled by the people for its most beneficial and highest uses.  Local politicians who control the money feel more accountable to the people.  Funding is less likely to be needed from the federal government which keeps them from being “commandeered” by the government to serve its purposes and advances its policies.

Early in the 20th century, the federal government adopted the mindset that the government should take care of those in our society who genuinely can’t do for themselves and those who temporarily fall behind.  They understood that a compassionate government should provide a safety net for its citizens.  Although the vision was well-intentioned, the temptation for abuse and fraud was not only felt by the people themselves but by government as well.  The “safety net” quickly turned into a “way of life” for to many people.  The “safety net” quickly became the new “American Dream” and it changed the character of the types of immigrants who come to our shores and across our borders.

Social Security was once considered a ‘right’ by American workers because it was their money, after all. The government withheld Social Security payments to keep in a “safe” fund for the individual once they retired.  It was a “safety net.”  If the person had no other means of income, at least he or she could collect the money the government ‘forced’ them to set aside.  But Social Security became a ‘right’ even to those who didn’t contribute. Then the government began to raid the people’s funds.  It no doubt used the money to provide other “entitlement” programs.

Soon we saw the “safety net” become an automatic “entitlement.”  And the programs grew.  And the people became more and more dependent on the government than they did on their own initiative, ambition, and resources.  The social pressure of success and contribution – the mentality that created this nation and helped it flourish – was gone. And just as little children become unruly when they are not shown discipline, Americans have become a morally and ethically weaker breed. The need for a good education is no longer an imperative.  The concepts of risk and sacrifice and innovation and hard work don’t equate as strongly with the notion of the “American Dream” as they used to. Stable families have been eroded because where young men and women once had to make good personal choices in their lives, government programs are easily available so that those choices don’t have to be made.  A woman doesn’t need a bread-winner any longer so she can stay home and raise well-mannered, productive, studious children. She can have children and the government will fund them AND raise them !!  The Nanny State has been created. The problem is that government funding doesn’t foot the entire bill.  The States pay a huge chunk into these programs.  And what do they get in return?  They get  dumbed down populace with little respect for rules and social norms and a generational mentality of dependence.. not to mention the increase in crime and social decay.  They become  a drain on the state rather than a contributor.

In his “A Time for Choosing” speech, Ronald Reagan talked about government’s role in social planning and wealth distribution. In addressing the mentality that lead to such social planning, he said: “We have so many people who can’t see a fat man standing beside a thin one without coming the conclusion the fat man got that way by taking advantage of the thin one. So they’re going to solve all the problems of human misery through government and government planning. Well, now, if government planning and welfare had the answer—and they’ve had almost 30 years of it—shouldn’t we expect government to read the score to us once in a while?  Shouldn’t they be telling us about the decline each year in the number of people needing help? The reduction in the need for public housing? But the reverse is true. Each year the need grows greater; the program grows greater.” Looking at the number of people on welfare who are obese and lazy, one today can ‘come to the conclusion that they got that way by taking advantage’ of those who aren’t.



Americans in the 20th Century built the richest, most prosperous nation in the history of the world.  And yet today we have built for ourselves a government that not even the richest and most prosperous nation in the face of the Earth can fund or afford to pay for. An extraordinary tragic accomplishment, if you can call it that.  And that is where we stand today. And so, if defining the proper role of government was one of the central issues of the Reagan era, it remains that now.”

Senator Rubio is right.  It is all about the proper role of government.  When government embraces those limited areas it was intended to be responsible for, and leaves the remaining matters to the States and to the People, then there will be true competition and prosperity.  And it is the States which need to take the lead and set that division of power and responsibility back to where our Founders intended.  The nation needs a massive re-adjustment and the States must take the lead.  They need to reign in the power of the federal government, for the sake of liberty and for the sake of our children.

Calvin Coolidge, the 30th President of the United States, once said: “To live under the American Constitution is the greatest political privilege that was ever accorded to the human race.”

We have inherited our freedoms at great cost from our forefathers.  Those precious freedoms were once well- protected under the our Constitution, thanks to a group of intelligent, forwarding-thinking and liberty-minded public servants. The question we must ask ourselves today is whether our freedoms are as well-protected as they need to be.  Secession is not the answer, but education, recognition, discussion, perseverance, and commitment are.  If we aren’t willing to do that, then our Constitution is worth nothing more than the piece of paper it was written on.





3).  US Constitution Online.







10).   (Primary Sources)

11).  Federal Directory of Departments and Agencies:








19).  Thomas Woods, The Politically Incorrect Guide to American History, 2004, Regnery Publishing, Washington DC.






25).  Thomas J. DiLorenzo, “The Men Who Destroyed the Constitution,” Lew Rockwell. Referenced at:


27).  Andrew Napolitano, The Constitution in Exile, Thomas Nelson Publishing (April 18, 2006).


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