Presidents set precedents, Jackson and Buchanan set the precedent that secession was illegal. They based this on the Federalist view of the Constitution. That the constitution was adopted by all the people, not a subset of people in a state. Where did this idea come from? It came from the Constitution where it states “We the people...”. It came from the writings of the founders at the constitutional convention. This view was also upheld by the U.S. Supreme court as early as 1821 in the Cohens vs Virginia decision;
“The people made the constitution, and the people can unmake it. It is the creature of their will, and lives only by their will. But this supreme and irresistible power to make or to unmake, resides only in the whole body of the people; not in any sub-division of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it.” [19 U.S. 264] 1821
In other words, on the doctrine of secession they promoted a "Living Constitution." May as well throw the Constitution in the trash can.
Legal documents, such as the Constitution, are themselves precedent. Additional constructions that give the general government powers not specifically authorized by the Constitution constitute usurpations of power, which is tyranny. A common form of usurpation is called Stare Decisis, or judicial precedent.
Regarding secession, this is what I consider to be the correct understanding of the natural right of secession:
"Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits them better. This is a most valuable,—a most sacred right—a right, which we hope and believe, is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government may choose to exercise it. Any portion of such people that can, may revolutionize, and make their own, of so much of the territory as they inhabit."
Do you agree, or disagree?
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>>OIFVeteran wrote: "That the constitution was adopted by all the people, not a subset of people in a state. Where did this idea come from? It came from the Constitution where it states “We the people...”. It came from the writings of the founders at the constitutional convention. This view was also upheld by the U.S. Supreme court as early as 1821 in the Cohens vs Virginia decision;"
>>“The people made the constitution, and the people can unmake it. It is the creature of their will, and lives only by their will. But this supreme and irresistible power to make or to unmake, resides only in the whole body of the people; not in any sub-division of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it.” [19 U.S. 264] 1821"
The phrase "We the people" has been treacherously abused, and especially by that ruling which was just another power grab by the Marshall court. The original Preamble read:
"We the people of the States of New Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare, and establish the following Constitution for the Government of Ourselves and Our Posterity."
It was soon realized that some of those states might not ratify the Constitution; so the preamble was changed to the more generic form, "We the people." The claim that the Constitution was adopted by "the whole people" is false.
Madison expounded the Preamble in Federalist No. 39:
"On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a national, but a federal act."
"That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal, and not a national constitution."
[James Madison, Federalist No. 39, in Bill Bailey, "The Complete Federalist Papers." The New Federalist Papers Project, p.178]
A difficult Amendment process, which requires requires ratification by at least three-fourths of the states, was included in the Constitution as the lawful avenue of change.
Mr. Kalamata
This idea of the "whole body of the people" has obviously assumed a mystical (almost religious) significance with some Americans, including some judges. However, it is not based on the specific, written provisions of the Constitution, or on historical fact. Please find below a concise summary (excerpted from a more recent opinion):
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Our system of government rests on one overriding principle: all power stems from the consent of the people. To phrase the principle in this way, however, is to be imprecise about something important to the notion of "reserved" powers. The ultimate source of the Constitution's authority is the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole.
The ratification procedure erected by Article VII makes this point clear. The Constitution took effect once it had been ratified by the people gathered in convention in nine different States. But the Constitution went into effect only "between the States so ratifying the same," Art. VII; it did not bind the people of North Carolina until they had accepted it. In Madison's words, the popular consent upon which the Constitution's authority rests was "given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong."
When they adopted the Federal Constitution, of course, the people of each State surrendered some of their authority to the United States (and hence to entities accountable to the people of other States as well as to themselves). They affirmatively deprived their States of certain powers, see, e.g., Art. I, §10, and they affirmatively conferred certain powers upon the Federal Government, see, e.g., Art. I, §8. Because the people of the several States are the only true source of power, however, the Federal Government enjoys no authority beyond what the Constitution confers: the Federal Government's powers are limited and enumerated. In the words of Justice Black, "[t]he United States is entirely a creature of the Constitution. Its power and authority have no other source."
In each State, the remainder of the people's powers-- "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States," Amdt.10--are either delegated to the state government or retained by the people. The Federal Constitution does not specify which of these two possibilities obtains; it is up to the various state constitutions to declare which powers the people of each State have delegated to their state government. As far as the Federal Constitution is concerned, then, the States can exercise all powers that the Constitution does not withhold from them. The Federal Government and the States thus face different default rules: where the Constitution is silent about the exercise of a particular power--that is, where the Constitution does not speak either expressly or by necessary implication--the Federal Government lacks that power and the States enjoy it.
These basic principles are enshrined in the Tenth Amendment, which declares that all powers neither delegated to the Federal Government nor prohibited to the States "are reserved to the States respectively, or to the people." With this careful last phrase, the Amendment avoids taking any position on the division of power between the state governments and the people of the States: it is up to the people of each State to determine which "reserved" powers their state government may exercise. But the Amendment does make clear that powers reside at the state level except where the Constitution removes them from that level. All powers that the Constitution neither delegates to the Federal Government nor prohibits to the States are controlled by the people of each State.
To be sure, when the Tenth Amendment uses the phrase "the people," it does not specify whether it is referring to the people of each State or the people of the Nation as a whole. But the latter interpretation would make the Amendment pointless: there would have been no reason to provide that where the Constitution is silent about whether a particular power resides at the state level, it might or might not do so. In addition, it would make no sense to speak of powers as being reserved to the undifferentiated people of the Nation as a whole, because the Constitution does not contemplate that those people will either exercise power or delegate it. The Constitution simply does not recognize any mechanism for action by the undifferentiated people of the Nation. Thus, the amendment provision of Article V calls for amendments to be ratified not by a convention of the national people, but by conventions of the people in each State or by the state legislatures elected by those people. Likewise, the Constitution calls for Members of Congress to be chosen State by State, rather than in nationwide elections. Even the selection of the President--surely the most national of national figures--is accomplished by an electoral college made up of delegates chosen by the various States, and candidates can lose a Presidential election despite winning a majority of the votes cast in the Nation as a whole. See also Art. II, §1, cl. 3 (providing that when no candidate secures a majority of electoral votes, the election of the President is thrown into the House of Representatives, where "the Votes shall be taken by States, the Representatives from each State having one Vote"); Amdt. 12 (same).
In short, the notion of popular sovereignty that undergirds the Constitution does not erase state boundaries, but rather tracks them…
Justice Clarence Thomas, US Term Limits v Thornton, 1995