Did the Civil War truly settle the secession question?

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:

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.

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.

They should have put that "understanding" in writing, as there seemed to be a disconnect in that alleged "understanding", insofar as it obviously wasn't "understood" by all the States that made up the Union, or ratified the Constitution.

Oh they did you sniveling little brat and quite clearly!!

Amendment IX:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

And it was understood by all for quite a long time until there appeared those who can read "implications" and "penumbras" which others can't seem to locate!

There's nothing ironic about it. If you understand the Declaration, it makes perfect sense.

all men are created equal

This simply means no man is born a king. It's a rejection of feudalism.

inalienable right to liberty

This expands on the previous point by asserting that men have the right to govern themselves, and not a monarch, which is known as political liberty. The European monarchs of the time were quite dismissive of this concept, asserting that the subjects would never succeed in this.

Thus Free Men have a right to form governments among themselves and agree on the course of their actions without the interference of self declared rulers. This would include those who use their position to abuse their powers by going beyond them. This is called usurpation. For that reason, Mr. Lincoln was referred to as a usurper.

The fact that the South excercised rightful powers in pursuit of denying those rights to others not of their political nation doesn't negate the right. It just makes it a less than advisable excercise.

Perhaps you didn't understand the document, since you appear to have a pretense to royalty of your own. In psychology, this is known as delusions of grandeur.

“They should have put that “understanding” in writing, as there seemed to be a disconnect in that alleged “understanding”, insofar as it obviously wasn’t “understood” by all the States that made up the Union, or ratified the Constitution.”

They did.....

We the Delegates of the people of Virginia . . . declare and make known that the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will:

We, the delegates of the people of the state of New York , duly elected and met in Convention, having maturely considered the Constitution for the United States of America . . . declare and make known. . . .

That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness;

Constitution of the Commonwealth of Massachusetts , 1780, Article IV
The people of this commonwealth have the sole and exclusive right of governing themselves as a free, sovereign, and independent State, and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right which is not, or may not hereafter be, by them expressly delegated to the United States of America in Congress assembled. (Constitution of the Commonwealth of Massachusetts , 1780, Article IV)

We, the delegates of the people of the state of Rhode Island and Providence Plantations, duly elected and met in Convention, having maturely considered the Constitution for the United States of America . . . . declare and make known. . . .

That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness.

Federalist 45#
The State government will have the advantage of the Federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them.

Federalist 43#
The first question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed.

Federalist 46#
But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke [i.e., the colonists’ fear of British oppression]; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity? In the contest with Great Britain , one part of the empire was employed against the other. The more numerous part invaded the rights of the less numerous part. The attempt was unjust and unwise.

[You, quoting Lincoln's toady] "Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null."

A really good example of an overreaching jurist pretending to rule on matters ultra vires his bench, and making it up as he goes along.

"The People are wrong! Long live the Reich!"

The dissent got it right. But Chase wasn't on the Court to get it right. He was on the court to cover his own and Lincoln's ass, from charges of having started a political war in North America that killed nearly a million people, all of them Americans.

You essentially make three points: all are fine examples of prevarication, sophistry, and puffery.

The facts stand. Your opinion of what might have happened certainly has absolutely no relevance and does not matter.

More than just that, you are beyond logic or fair discussion.

You have a problem in that these facts are antithetical to your intuitional construct of period history, and of course you will continue to misrepresent the events surrounding the secession because it suits your emotional needs, and you think you can influence others who do not know the facts.

Your bias is on parade.

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