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.
Exactly! As I said earlier on in this thread.
The system the framers intended would have any of the three branches of government act as a check on the excesses of either or both of the others and the states would act as the final and ultimate check on the entire federal government.
I suppose that given what had so recently occurred when that case came before the court that no one was about to raise any questions as to propriety of Salmon Chase’s participation even though the conflict of interest questions should have been, to say the least, glaring.
At some point, Lincolnites would have had to own up that they'd attacked sovereign States in order to possess them as a conquered march, as economic and political colonies. That's about what happened during Reconstruction. So then you have Lincoln failing the test he'd proposed for President Polk's call for articles of war against Mexico in Lincoln's famous "Spot Resolution". In other words, Lincoln couldn't point to a good reason for precipitating hostilities between the federal government and the departing States other than raison d'etat, and he couldn't point to enabling articles of war, either.
The constitutionality of any number of Lincoln-era laws and executive orders would have come to the fore if Texas vs. White had been decided the other way, as well as a number of Reconstruction measures, including the ratification of the 14th Amendment which was controversial at the time and still should be.
Therefore, Chase's and the other Lincoln appointees' real reason for holding as they did was a consequentialist one: "As former warmakers, we can't afford to have these issues come back to us!"
No, they couldn't afford it. Not with such a stratospheric cost in blood having already been paid by others.
Re 14A, further: There was never any question of binding e.g. the BoR to the States before 14A, but since then Northern pols and judges have been very selective about which articles apply: AJ Sonia Sotomayor only a couple of years ago, as an appellate judge in a firearms case, flatly denied that the Second Amendment is bound to the States (in the face of the language of 14A).
Absolutely!
Re 14A, further: There was never any question of binding e.g. the BoR to the States before 14A, but since then Northern pols and judges have been very selective about which articles apply: AJ Sonia Sotomayor only a couple of years ago, as an appellate judge in a firearms case, flatly denied that the Second Amendment is bound to the States (in the face of the language of 14A).
This is true as well but who else has noticed?
More of that Southern hospitality we hear so much about?
Are you sure I'm a fascist and not a commie?
No, it's your theory that some people have no rights at all and other people have all the rights at the expense of the have nots. And how you manage to conclude that the Constitution supports something like that is mystery. On the other hand, giving your odd theories, maybe not.
Only the Government has "rights". The People are always wrong, and need to be talked down to by the voice of command.
OK it you want to take it to your levels, what gave the 7 rebelling Southern states the right to steal property that properly belonged to all the states jointly? I keep forgetting, in your world only the rebelling states had rights. The remaining states had none.
Step up to the bar, then, treat us all to another round of barrel-proof statism.
Liquor might explain a lot of your posts.
The one the Southern states initiated in 1861 and fought to an unsuccessful - from their viewpoint - conclusion in 1865. Did you sleep through all your American history classes in school?
Lincoln rebelled against the Constitution!
The actual clause of the Constitution you should be looking at is Article I, Clause 8 which provided for "calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions..." With Congress not being in session, the Militia Acts gave Lincoln the authority to do that in their absence.
Figure, Lincoln didn't think this applied - Since he was the one invading......
It didn't apply because the Southern states were the ones rebelling.
Did he illegally invade a sovereign Country...
There was no sovereign country called the confederate states of America.
...Which is currently under occupation?
Hey, Delta flies out of the country as well as into it. Feel free to flee the 'occupied territories' and find another place to plant your butt.
ROFLMAO!!!! Have you called your press conference to release it to the media yet? Did anyone show up?
See, that's what makes your posts so down right funny. In your world some states ARE more sovereign than others and CAN tell other states what they can or cannot do. The hypocrisy and contradictions that y'all spew out with ever post boggles the mind.
Uh NO! That would be YOU and the great Mr. Lincoln's theory!
It is YOUR side spouting the idea that states who wish to leave of their own free will cannot do so and should be made to stay against their will by whatever means are necessary including armed force and despite the fact that their is NOT A WORD in the law compelling them to stay!!
That idea is perfectly analogous to your wife deciding she is going to leave you but being denied the ability to do so because you are literally holding a gun on her to make her stay!
You say that because you're thick as a brick. In your world a state is free to walk out without discussion, without agreement, for any reason or no reason at all. And the other states have no choice but to accept that regardless of the impact it has on their well-being. National debt? Too bad, so sad, that's the responsibility of the remaining states to deal with as best that they can without any help from the leaving state. Treaty obligations? Sorry, that's the responsibility of the remaining states to deal with as best they can regardless of the hardships. Federal property? Tough, the leaving states can take all that they can get their hands on regardless of the fact that it was purchased with revenue provided by all the states, those leaving and those staying. Economic disaster by having access to the sea cut off? Tough titties, remaining states. The leaving states have the right to do all that, and the remaining states have no choice but to sit back and take it. So all that makes your claim that "No state is more sovereign than any other state so no state or group of states can tell ANY other state or group of states what it can or cannot do!" so much BS. In your world some states are more sovereign than others, you just proved it by claiming that states have the right to take all those actions and make the remaining states suffer without being able to do anything about it. All they have to do is walk out.
You are, as I've pointed out before, a walking, talking mass of contradictions. In your world no state is more sovereign than another, except when they are. The federal government should not tell a state what to do, except when you think they should. You believe in states rights, except when you don't. You are all over the board saying one thing at one time and the exact opposite at another time and you don't see they hypocrisy and the nonsense in it. That's what makes dealing with people like you and Lentulusgracchus so much fun. You guys can say the darnedest things without realizing how moronic they make you appear.
No! I say that because it is absolutely true and YOU are about the only one around who cannot see that!
The contradictions in what YOU continually post are legion!
Riiiighhtttt.........and the moon landing was filmed in a Hollywood backlot............
{shaking head}more of non-sensical's northron mythology{/shaking head}
Bwahahahahahahahahahaha!!!!!!!
What in the hell would YOU know about normal?!?
You mean like, half-a-dozen Northern States getting together and sending a million bayonets south, to tell Virginia and the Carolinas what to do?
Lincoln's original plan, remember.
Well, one can hope that at least the people on this board will know about it, and notice, when the Justices start screwing around with our RKBA again .... ;)
Thomas Jefferson predicted that the federal courts would start doing this, after Marshall grabbed off the exclusive right of interpreting the Constitution in Marbury.
"It's Wednesday, and this is my friend Bob, so the Bill of Rights applies."
Yes, by your own profession.
But like LBJ once said of Coke Stevens, "I just want to hear him say it!"
And he difference between the two is, the Communist theoretically (but not in practice) claims to put the People first, and commands the State to do all things in their name.
The fascist puts the State -- divorced from the People -- first, and he invests sovereignty in the State.
You're on the record investing sovereignty in the United States Government. Not the People of the United States.
Indeed he did which is why I posted a little of what he said about that here.
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