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.
They ended up in Indiana ~ refugees from slavers.
I have no doubt they were proud as punch their children and grandchildren were able to return and blow the slavers to kingdom come, burn their houses, torch their fields, free their slaves......
You people who think you have all the answers about "why the war happened" forget that it was different for different people.
You can go fight your war ~ this one is over and the right people lost it fair and square.
And we're supposed to accept you're verdict on who is correct concerning the Constitution? We're all still waiting for you to tell us how the Air Force and NASA are unconstitutional, which they must be since you say there are no implied powers in the Constitution.
I know that you just can't wait to visit on random northerners what you believe was inflicted on your ancestors 150 years ago, but somehow I doubt I'm ever gonna see the day when you are leading your victorious southron armies down my block, torching every house.
Of course you do.
...and the only parties doing any "forbidding" are the States themselves...
"...or prohibited by it to the States...." Sure sounds like it's the Constitution doing the forbidding.
The original language of Articles I and IV is much more expressive of original intent...."
Of course it is.
THAT, dumbass, is EXACTLY the argument made by the people you're trying to piss on. Do you hear us now????? I pray you and yourn do, but I doubt you do.
And wait you shall as I have no intention of educating you on the matter.
I much prefer the comic relief provided by your making a complete fool of yourself in public.
“Secession is legal, if done within the bounds of the Constitution.”
Well, I’ve read the Constitution, and studied it and its progeny in my Constitutional Law classes way back in the day. Nowhere in the Constitution is secession even addressed. However, SCOTUS did tread on the issue in 1868 (Texas v. White), when it held that secession was unconstitutional. That ruling would be ex post facto, and the constitution does not allow any retroactive application. Thus, arguendo, pursuant to Texas v. White in 1868, secession going forward would be unconstitutional. However, prior to Texas v. White, secession was not unconstitional (there was nothing on point even addressing the issue).
It’s an interesting subject.
And wait we shall because you couldn't if your life depended on it.
I much prefer the comic relief provided by your making a complete fool of yourself in public.
You keep telling yourself that.
It held that secession as practiced by the Southern states was unconstitutional. Chief Justice Chase noted that it was permitted with the consent of the states.
That ruling would be ex post facto, and the constitution does not allow any retroactive application.
I would point out that all court decisions are ex post facto since all decisions take place after the fact. And court decisions quite frequently are applied retroactively; witness Furman v Georgia which struck down death penalty verdicts all over the country in 1972.
However, prior to Texas v. White, secession was not unconstitional (there was nothing on point even addressing the issue).
That is not what the Texas v White decision says.
It’s an interesting subject.
It is indeed.
Come to think of it you may well have a point as no one has yet been able to educate you in the 10 years or so they've been trying on this forum!
So who owns the Constitution, Mr. Would-Be Forbidder?
Remember, we had that conversation. Who is the Sovereign, the absolute Lord and Master of the United States of America?
Who owns America? Who gets the last "yes" and "no"?
Nine but who's counting. And "education" and "Southron supporter" are contradictions in terms. But that's OK. I certainly wouldn't expect you to explain how you come to your conclusions on the Constitution. Asking you to elaborate on something you know nothing about wouldn't be fair.
Well, you DID. Your statement summed up everything that these nasty threads try to prove from all sides. If all of us would each just stop and repeat that statement, we would all be telling the TRUTH, and would also remain true to each of the individual viewpoints that each of us is trying to espouse. I am reminded of a quote..."overwhelming force may crush Truth to earth, but crushed or not, Truth is still Truth."....
How can I forget something that comical?
Not "end of story". Post the proof. Show my misquote, in the quotes I used to try to deceive people.
<snort!>
You weren't laughing then. Answer the question, big shot.
The only winners were Lincoln and his political ring and the Eastern businessmen they fronted for. And it was the latter who cashed the winning ticket and grew fat and rich off the Gilded Age.
Everyone else lost, Iowa farmboy veterans no less than dead Georgians.
“I would point out that all court decisions are ex post facto since all decisions take place after the fact. And court decisions quite frequently are applied retroactively; witness Furman v Georgia which struck down death penalty verdicts all over the country in 1972.”
Read what I said. I said an ex post facto ruling cannot be retroactively applied. That means that if something is legal in 1860 the Constitution does not allow a ruling in 1868 to go back and charge the actor after the fact (i.e., ex post facto application).
“That is not what the Texas v White decision says.”
That’s what the LAW says.
I think the reason you antagonize so many people on FR (besides you pathological hatred of anything and everything Southern, which is, in all candor, alarming), is that you cherry-pick other’s comments, take them to a place they never were, and then toss in an aside that, while on the surface may seem relevant, but in fact is not. It is, well...a non-sequitur.
Oh My! You are displaying your prejudices for all to see yet again but don't worry about that as we have come to expect it from you. In fac, if you didn't do so we probably wouldn't believe it was really you.
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