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.
Alas, yes. But so was Ronald Reagan. And you still get LBJ, Jimmy Carter, and Bill Clinton.
You're late to the party.
You admit that the Confederacy sent peace commissioners to Washington in the early days of the Lincoln administration to negotiate peace and organize payment to the Federal government for any property or debt for which it had responsibility.
Somehow, you want to draw the conclusion that the word “surrender” applies to that.
Since there was no war at that point, there was no issue of surrender. Since the Confederacy was not asking for anything that belonged to the other states, nothing was being taken.
The status quo was peace, which the Confederacy was attempting to reinforce through diplomacy.
Lincoln's position from the beginning had been the forceful retention of two federal posts on Southern property. To say that they were not interested in his position is correct.
To say that they were not interested in Lincoln's alternative to peace was correct.
But they remained loyal to the concept of peaceful existence with the Union, and made every effort to enable that to happen.
The great statesman, politician, freedom loving Lincoln made sure that death replaced peace and offers of compensation turned into seized, trampled, and burned property.
Imho, the Declaration of Independence, and the U.S. Constitution are the founding documents of this great nation. So, with out further adieu...
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:
•“Yes, because x.”
X=the entire first paragraph of the Declaration of Independence. X=the Ninth and Tenth amendments (Causes for separation). And finally, X=Article IV, Section 4, first paragraph (Does anyone think we now have a Republican form of government?).
Doesn't the great state of Texas have a clause in their constitution regarding secession?
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Because you say so? Whoop-de-do.
You admit that the Confederacy sent peace commissioners to Washington in the early days of the Lincoln administration to negotiate peace and organize payment to the Federal government for any property or debt for which it had responsibility.
I admit nothing of the kind, that is your imaginative interpretation. Based on the letter of introduction sent to Lincoln by Jefferson Davis, there is no evidence they were there to do anything but present his demands - recognize the legitimacy of Southern secession. They were not there to negotiate, the letter doesn't say they were there to negotiate. Negotiation requires that the positions of both sides be discussed, and Lincoln's position wasn't on the table. There was no indication that they were prepared to discuss debt or payment for stolen property, the letter mentions nothing of the kind. Only a vague offer to 'agree, treat, consult, and negotiate' but only on 'matters and subjects interesting to both nations'. So if payment for debt wasn't of interest to Davis then it wasn't open for discussion. If payment for stolen property wasn't of interest then it wasn't open for discussion.
Call the letter what it was; an arrogant demand. An ultimatum. But it wasn't an offer to negotiate and it wasn't an offer to pay for anything. That is the myth you build into it, not me.
Somehow, you want to draw the conclusion that the word “surrender” applies to that.
And what was the outcome that they were there to get? Recognition of confederate independence. A complete cave in to rebel demands. Not Lincoln's position - an end to secession and return to the rule of law. So how did they imagine that they could get what they were demanding if not through a complete surrender to their ultimatum on the part of Lincoln? Calling it a surrender is calling it what it is.
The status quo was peace, which the Confederacy was attempting to reinforce through diplomacy.
The confederates were not interested in the status quo. If they had been then they wouldn't have forced the issue at Sumter. They would have allowed the peaceful resupply of food and allow the status quo to continue. Instead they chose war and are responsible for all the death and destruction that followed.
Lincoln's position from the beginning had been the forceful retention of two federal posts on Southern property. To say that they were not interested in his position is correct.
So? They belonged to the federal government. The South had no legal rights to them, or any of the other federal property they had stolen. You are blaming the crime on the owner of the property and not the thief.
To say that they were not interested in Lincoln's alternative to peace was correct.
So how can you say they were there to negotiate?
But they remained loyal to the concept of peaceful existence with the Union, and made every effort to enable that to happen.
By demanding that the Union cave in to their demands and then by bombarding a fort for 36 hours. Some peaceful existence.
The great statesman, politician, freedom loving Lincoln made sure that death replaced peace and offers of compensation turned into seized, trampled, and burned property.
Cue the violins. The great Southron myth machine is at full power once again.
No.
THE TEXAS CONSTITUTION
ARTICLE 1. BILL OF RIGHTS
Sec. 1. FREEDOM AND SOVEREIGNTY OF STATE. Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States.
Sec. 2. INHERENT POLITICAL POWER; REPUBLICAN FORM OF GOVERNMENT. All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.
Maybe not a "clause," but seems to me the Lonestar state makes it pretty clear if certain rights are breached by the federal government, they can dissolve the relationship.
Obviously, this question of law is not stare decisis, no matter what Scalia thinks.
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I would refer you to Article VI Clause 2 of the Constitution. Regardless of what Texas may think their constitution allows for, they may secede only if the U.S. Constitution provides for it, and only is such a manner as it legal under it.
Obviously, this question of law is not stare decisis, no matter what Scalia thinks.
I think I'll defer to Justice Scalia and his expertise over your's. No offense meant.
None taken. I'm not a jurist, and Justice Scalia is far more educated in the law than me. Having said that, I laid out an argument in post 544, that I challenge any legal scholar to dismiss out of hand. Further more, I hope I'm wrong, this type of case may one day make it to SCOTUS. If it does, all bets are off.
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And the Supreme Court has ruled, in the Texas v White decision, that secession is possible with the consent of the other states. During the rebellion the Southern states seceded unilaterally, which the court found to be illegal.
Who were boy scouts compared to your favorite marxist, Obama.
If you say so. Most normal people would put them in the same class with each other.
Answer the question you're ducking, Non-Sequitur. Answer the question that you're ducking because answering it truthfully will out you as a barrel-proof American fascist.
Your theory is that the People have no rights at all.
Only the Government has "rights". The People are always wrong, and need to be talked down to by the voice of command.
Step up to the bar, then, treat us all to another round of barrel-proof statism.
What rebellion?
Lincoln rebelled against the Constitution!
[...] and [The United States] shall protect each of them [the States] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. Figure, Lincoln didn't think this applied - Since he was the one invading......
or
Did he illegally invade a sovereign Country - Which is currently under occupation?
Because that's one of his key "debating" tactics.
Ignore, ignore, ignore the pointy questions .... and then slide off and go lie to someone else who looks green.
Then, after ignoring you for a while, he comes back and says you are tardy, when you press for an answer to your original unanswered post.
Bullshit shoveled with Olympian hauteur is his metier, his shtick, his grift.
Notice that he's always quoting Supreme Court decrees, not the Federalist or Madison's letters or Jefferson's? He posts five quotes from John Marshall for any one of the Framers. He even imitates Marshall in his posting style -- rescripts from the high bench of Non-Sequitur, to the unfortunate proles who must obey them.
I like Andy Jackson's retort: "John Marshall has made his decision, now let him enforce it ...."
Oh, yeah ..... ping. Not that you deserve it.
I'd have to say "yes" -- Congress never delivered articles of war.
We the People of the Sovereign States and Territories constituting and entitled the Confederate States of America hereby proclaim before Almighty God and all who may read these presents that as our forefathers lawfully, peacefully and constitutionally seceded from that voluntary union of States entitled the United States of America and formed a new nation, according to their reserved political rights, and the inalienable rights endowed them by their Creator, so the aforementioned States and Territories were, are, and remain now Sovereign political entities within a voluntary national Confederation, conjointly constituting one independent nation amongst the nations of this world, and styled ‘The Confederate States of America.’
We further declare that these inalienable truths are, and in no way can be, negated or compromised by the historic fact that the nation so founded was once aggressively, arrogantly and illegally invaded, overrun, occupied and subjugated by a superior external force, and thus subjected to war crimes and other crimes against humanity and brutally denied rights of life, liberty and due process of law, nor by the fact that our citizenry (when no longer able to defend their homes or persons and denied, by that brute force the basic human right to self-determination and choice of manner of government) were compelled, as States and Territories, to retract their articles of secession and rejoin, against their manifest will, their former and repudiated union.
We hereby declare that all such pretended acts, having been performed without the mandate or consent of the governed, and outside the duly ratified Confederate States Constitution, were, are, and forever shall be null and void, and so the dates of Secession of the several States and Territories (each acting in its Sovereign capacity) continue in unbroken validity from the said dates, as shall the dates of Secession of any such further States of the American union as may, at any time, choose to resume their sovereign status among the nations of the world.
And we declare before God Almighty, and call the peoples of the world to witness, our belief that, as men are created equal under Him, so are nations sovereign and equal in His sight, and as no man has the right to oppress another, so no nation may oppress another nation, enter their lands by force, or force their political will or culture upon another people, by means direct or indirect.
Upon these just and unbreakable grounds we confidently pray the Grace and Divine Providence of Almighty God, that our cause may be vindicated and our right to self-determination again openly acknowledged before Him.
It was one of the key innovations of the Constitution as it was proposed to the Philadelphia Convention, that the federal government does not bind the States (which are sovereign), but rather the individual citizen under "dual sovereignty" -- the State binds him, and the Union binds him, and reconciling the two is the work of the judiciary.
The States' governments and the federal government are supposed to operate in separate, constitutionally-defined spheres. That they don't, is the work of assorted Yankeefying power-mad elites and interest groups trying to ram their arrangements down everyone's throat using perverted interpretations of the Commerce Clause, e.g., and micromanagerial Congressional acts and Executive Orders as more ee.g.
It wasn't supposed to be like this.
In this relation, then, the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.
-- The Federalist No. 39 (Madison)
This deal has been broken, and the brokenness of the federal system is the legacy of Non-Sequitur's heroes' wet dream of federal omnipotence, omnicompetence, and autocracy.
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