Just so. A state never has the power to decide what is constitutional at all. That power belongs to the federal government, namely SCOTUS. Read Article III very carefully. You will find no 10th Amendment exception there.
Section 1 doesn't address the question of secession at all, it talks about judicial power.
Section 2 also talks about judicial power, and part of it was amended by the 11th amendment. The 11th amendment nor section 2 prohibits secession explicitly or implicitly.
Section 3 talks about treason, not secession. If you view secession as treason, you are incorrect. Treason is defined as an act of war against the United States or helping their enemies. Secession is not treason.
SCOTUS has all original and appellate jurisdiction concerning the Constitution. The other material does not apply as you well know. Go back and read it all in its totality, please. Secession, implied or express, is not a state power. Secession is treason.
Treason is explicitly defined in the Constitution, article III section 3.
"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."
Secession is not levying war or aiding enemies of the United States. It is leaving the union. Therefore, it is not treason.
Actually, SCOTUS does not have original jurisdiction concerning the Constitution. This is made incredibly clear in article III section 2:
"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction."
The court has original jurisdiction only when government officials are involved, or when a state is the defendant or plaintiff.
As for appellate jurisdiction, it continues to say this:
"In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction."
Here are those before mentioned cases:
"The judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."
What if laws do not arise under the Constitution, but are unconstitutional? The states swear and oath to uphold to Constitution, and enforcing unconstitutional law would be in violation of that oath and the Constitution. Hamilton explained this in the Federalist papers.
Federalist No. 33
But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.
(caps are not mine, but bold is).
You have made the argument that the courts, because of their jurisdiction, have the only say on constitutionality. That is not correctly, as explained in Federalist No. 78.
Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.
In otherwords, your argument that the courts are supreme is wrong. Keep in mind this is a federalist talking, not a Jeffersonian. These guys were the ones arguing for
less state control and more central powers. Even they made the same argument.
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.
This is the point. Unconstitutional law does not have to be declared unconstitutional by the courts to be void. It is, by default,
void. Nullification is the refusal to enforce a void law.
...
the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words,
the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. [/quote]
In other words, if the court rules incorrectly against the Constitution, the Constitution is to be held higher than the statute, meaning the law is still void.
I don't think the right to nullification could be any clearer. The argument about jurisdiction also has nothing to do with secession, because secession is not an act of interpreting the Constitution, it is an act of leaving the union.
