Posted on 02/17/2010 3:43:05 PM PST by Constitutionalist Conservative
Prior to the American Civil War, it was popularly assumed that states which had freely chosen to enter the Union could just as freely withdraw from said union at their own discretion. Indeed, from time to time individual states or groups of states had threatened to do just that, but until 1860 no state had actually followed through on the threat.
Since then, it has been considered axiomatic that the War “settled the question” of whether or not states had the right to secede. The central government, backed by force of arms, says the answer is No. As long as no state or group of states tests the central government’s resolve, we can consider the question to be “settled” from a practical viewpoint.
This assertion has long troubled me from a philosophical and moral viewpoint. We are supposedly a nation of laws, and the central government is supposedly subservient to the laws that established and empower it.
In a nation of laws, when someone asks, “Do states have a right to secede from the Union?”, a proper answer would have one of two forms:
Here, x would be an explanation of the laws that supported the Yes or No answer.
With the secession issue, though, we are given the following as a complete and sufficient answer:
“No, because if any state tries to secede, the central government will use force of arms to keep it from succeeding.”
There is no appeal to law in this answer – just brute force.
Based on this premise, the central government can amass to itself whatever right or power it chooses, simply by asserting it. After all, who has the power to say otherwise?
Come to think of it, that’s exactly how the central government has behaved more often than not since the Civil War.
This issue came to mind today because of an item posted today on a trial lawyer’s blog (found via Politico). The lawyer’s brother had written to each of the Supreme Court justices, asking for their input on a screenplay he was writing. In the screenplay, Maine decides to secede from the US and join Canada. The writer asked for comments regarding how such an issue would play out if it ever reached the Supreme Court.
Justice Antonin Scalia actually replied to the screenwriter’s query. I have a lot of respect for Scalia regarding constitutional issues, but his answer here is beyond absurd.
I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court. To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, "one Nation, indivisible.")
He actually said that a constitutional issue was settled by military action. Oh, and by including the word “indivisible” in the Pledge of Allegiance, the issue became even more settled.
What if the president were to send out the troops to prevent the news media from publishing or broadcasting anything critical of his administration? This is clearly an unconstitutional action, but by Scalia’s logic, if the president succeeds, we must then say that the military action “settled the question” of free speech.
If these scenarios are not comparable, I’d like to hear why.
The Federal government did not create the States, they created it to serve their interests.
It does not own them. The States are sovereign, no matter what BS Lincoln pedaled about the marriage being forever.
The State's started the marriage and they can make the divorce.
Interesting. When it served his purposes Lincoln defended secession. Apparently, as Glenn Beck said yesterday, he “found himself in office.” Regardless of what Lincoln said in 1861, secession is Constitutional. If our founders did not think so we would still be Colonies of Great Britain. It must be noted that during a debate on January 12, 1848, Lincoln, then a young first term representative, argued with skill and power in favor of the 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 and most sacred right, a right which we hope and believe is to liberate the world!” Lincoln thundered. The action he took in sending 75,000 northern troops to murder Southrons in order to prevent them from seceding is evidence he lied to get elected.
>>With the secession issue, though, we are given the following as a complete and sufficient answer:
“No, because if any state tries to secede, the central government will use force of arms to keep it from succeeding.”
There is no appeal to law in this answer – just brute force.<<
I am NOT addressing the underlying question — I have learned over the years these Civil War threads get wilder than the Crevo ones!
But I would like to point out this is a bit fallacious in that all laws are, in the final analysis, enforced from the barrel of a government gun.
Other than that, have at it.
You start with a completely inaccurate assertion. The Founding fathers, Andrew Jackson, even Stephen Douglas, all regarded secession as treason. Secessionists, then as now, were regarded as lunatic fringe. That is why the secession crisis of 1860-61 caught most by surprise.
A fair number of states were raised up out of territorial claims held by Virginia and the Carolinas. Rescission of their statehood would revert them to their prior status as Virginia land claims.
Yet other states were raised up out of the Louisiana Purchase ~ that is, land owned by the United States. Rescission of statehood with any of them should entail reversion to that status.
Texas was a recognized independent nation. Presumably it, and part of Oklahoma and New Mexico could revert to that status.
Basically every state in the Union since the original 13 states combined adopted the Articles of Confederation has been created out of some prior extension of government under a different state, or the lands owned by the United States, or the voluntary accretion to the United States by another country.
I suppose it's perfectly OK for a state to leave the union, but that does not give them a right to take the land with them (except for Texas and maybe California).
Best secessionists talk to the Canadians first to see if they'll loan them some territory to erect their own government.
No.
Because like every single other political question in the history of mankind, it must eventually be resettled by new generations with force of arms.
It would seem that under the 10th amendment, states may have a right to secede, because secession isn’t mentioned in the constitution. But a counter-argument could be made that a seceding state gives up its rights under the 10th amendment; there’s nothing in the constitution prohibiting war against a seceded state! Also the Federal Government does have the duty under the constitution to guarantee a republican form of government to states, which could be interpreted to at least limit the right to secede.
What’s certain is when Jefferson Davis ordered the attack on Fort Sumter the legal arguments became moot, and Southern secession became purely a test of military strength. The South picked the wrong man to lead it, and suffered the disastrous consequences.
America’s Second Revolution was unsucessful- it just so happened that the tyrant in that case was able to subjugate the rebels by invading and conquering their territory, as well as killing many Americans. No more, no less. Anytime tyranny succeeds, liberty dies. Lincoln was no friend to the Constitution, in fact, he was one of its worst enemies.
The only thing we didn't do that we should have done was purge the United States of every last single member of the Democrat party.
“No, because if any state tries to secede, the central government will use force of arms to keep it from succeeding.”
There is no appeal to law in this answer – just brute force.<<
And of course, the refutation of this simplistic answer is writ large across the pages of American history.
1. The military forces in the past split, rather than all going to one faction.
2. In the 1940s nuclear arms were created which makes engaging in war in which you did not reatain one hundred percent of the military and one hundred percent of military production have a whole new level of bad consequence.
Next contestant.
It falls apart right there because many political leaders from Webster to Clay to Madison to Jackson to Buchanan to Lincoln all disputed the idea that states could secede - either unilaterally or at all.
So a state government or convention can't simply declare on its own that its citizens are no longer a part of the country.
Checks and balances, checks and balances: to give any state institution unchecked power to dissolve ties with rest of the country goes against both the spirit and the letter of the Constitution.
It appears you are engaging the OP...?
Lincoln, in a very Kerry-esque manner was for seccesion before he was against it.
In any case, the minutes of the constitutional convention make it clear that the men who wrote that august document clearly believed in a right to seccede.
I believe I am primarily engaging the author of the article.
:P
That's not true.
In any case, the minutes of the constitutional convention make it clear that the men who wrote that august document clearly believed in a right to seccede.
Did they now?
OK — I was confused a bit there :)
Not the first time and not the last, I am sure :)
Since you missed it the first time: January 12, 1848, Abraham Lincoln said, “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 and most sacred right, a right which we hope and believe is to liberate the world!”
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