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.
It was his military base.
What part of ‘sovereign’ do you not understand-?!
OK, you don't like "It was his military base?" How about "It did not belong to them. South Carolina had no legal claim to the property." Is that better?
Exactly what the free and sovereign states of the Confederacy tried to do!
A revolution is the (violent) overthrow of one government to be replaced by another.
Never happened in the history of OUR country!
The colonies never sought to overthrow the British Crown and replace it with another government. They merely sough, and eventually gained, their independence from that British government and, by your own definition, that is NOT a revolution!
We all know what your belief is the problem is that you cannot provide a shred of legal basis for your belief other that what you think is implied!
“It falls apart right there because many political leaders from Webster to Clay to Madison to Jackson to Buchanan to Lincoln..”
His argument does not fall apart. Your use of ‘higher authority’ political leaders is not relevant since the government was a representative republic, not an oligarchy of political personalities.
The Republic was governed by law, not the masses. There was no admonition against secession, nor consequence of enforcement ever vested in the central government.
Plus one Supreme Court decision and the writings of James Madison. But hey, what did he know about the Constitution anyway?
So what have you got showing support for secession without consent of the states?
“So a state government or convention can’t simply declare on its own that its citizens are no longer a part of the country.”
Two things wrong with that sentence, and you know what they are. First, there was no law against a state withdrawing. They could and they did.
Second, it was the people declaring their independence.
None of that was of critical importance until Union troops started taking lives.
OK, would it have been better to say that his claim that "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" is completely false?
The Republic was governed by law, not the masses. There was no admonition against secession, nor consequence of enforcement ever vested in the central government.
Nothing allowing it either.
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.
Amen!!!
N-S If your lurking = Shove it!
And there is also this:
When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation...
Do you recognize that?
“The Preamble of The Constitution says:
‘We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.’
Formed by the people, the whole people, of the United States, its existence is dependent on them, aud not on the States ; and it can only be dissolved by the power that give it birth; States may pass ordinances of seccession, but they cannot over- throw the fabric created by the source of all political authority in this country — the people.” - In Congress, Rep. Edward J. Morris (Penn) January 30, 1861.
That amounts to tidily squat!
Original version: They didn't know ( which State[s] would ratify ) So they went with your “We the people”
“We the people of the States of New Hampshire, Massachussetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity.
Further more 1864 Dictionary
Federal 1. Pertaining to a league or contract; derived from an agreement or covenant between parties, particularly between nations. 2. Consisting in a compact between parties, particularly and chiefly between states or nations; founded on alliance by contract or mutual agreement; as a federal government, such as that of the United States.
How about this?
The power to admit a state and to approve any changes in its status once admitted is a power reserved to the United States. Try again.
Yeah. So next time the South decides to launch a revolution I suggest they win.
How about this?
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
If the Constitution says it isn't allowed, then it isn't allowed. Regardless of what the ratification document said.
exactly
I find it interesting that Lincoln did say succession was lawful back in 1848 but then changed his mind when in power, thought we all knew he used slavery too as a political ploy to keep Europe out of the war and recognizing the confederacy.
Also what if a few states today said that is it for us we’re leaving the union. states like FL,SC,GA,TX,OK,AK,UT,LA,TN could all join and go it alone today quite easily and so what would DC do?
Send troops down here to kill again.
That would not go down too good for up north and lets face it parts of the north east is like going to another country compared to down here.
I find it interesting too that some up north will say traitors etc and yet those who fought the British were classed as traitors but because they won back then it means it was OK to leave but when you loose it is not.
All those saying we do not have a right to leave the union must also have the am view when a breakaway area wants to leave Russia or another country then. So the next time we hear there is no right then I take it those other areas have no right either because of say Russias constitution.
exactly
I find it interesting that Lincoln did say succession was lawful back in 1848 but then changed his mind when in power, thought we all knew he used slavery too as a political ploy to keep Europe out of the war and recognizing the confederacy.
Also what if a few states today said that is it for us we’re leaving the union. states like FL,SC,GA,TX,OK,AK,UT,LA,TN could all join and go it alone today quite easily and so what would DC do?
Send troops down here to kill again.
That would not go down too good for up north and lets face it parts of the north east is like going to another country compared to down here.
I find it interesting too that some up north will say traitors etc and yet those who fought the British were classed as traitors but because they won back then it means it was OK to leave but when you loose it is not.
All those saying we do not have a right to leave the union must also have the am view when a breakaway area wants to leave Russia or another country then. So the next time we hear there is no right then I take it those other areas have no right either because of say Russias constitution.
The State[s] interred a contract ( The Constitution ) With an Understanding - they could leave.
Look at the Dictionary for the ‘term’ Federal - Prior to 1864
Federal 1. Pertaining to a league or contract; derived from an agreement or covenant between parties, particularly between nations. 2. Consisting in a compact between parties, particularly and chiefly between states or nations; founded on alliance by contract or mutual agreement; as a federal government, such as that of the United States.
Look at these State ratification ordinances.
Rhode Island
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. That the rights of the states respectively to nominate and appoint all state officers, and every other power, jurisdiction, and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or to the departments of government thereof, remain to the people of the several states, or their respective state governments, to whom they may have granted the same; and that those clauses in the Constitution which declare that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution; but such clauses are to be construed as exceptions to certain specified powers, or as inserted merely for greater caution. . . . The United States shall guaranty to each state its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Constitution expressly delegated to the United States
New York
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; that every power, jurisdiction, and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several states, or to their respective state governments, to whom they may have granted the same; and that those clauses in the said Constitution, which declare that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution; but such clauses are to be construed either as exceptions to certain specified powers, or as inserted merely for greater caution
Federalist #46 To the People of the State of New York:
“Were it admitted, however, that the Federal government may feel an equal disposition with the State governments to extend its power beyond the due limits, the latter would still have the advantage in the means of defeating such encroachments. If an act of a particular State, though unfriendly to the national government, be generally popular in that State and should not too grossly violate the oaths of the State officers, it is executed immediately and, of course, by means on the spot and depending on the State alone. The opposition of the federal government, or the interposition of federal officers, would but inflame the zeal of all parties on the side of the State, and the evil could not be prevented or repaired, if at all, without the employment of means which must always be resorted to with reluctance and difficulty. On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.”
Federal #43 To the People of the State of New York:
“The express authority of the people alone could give due validity to the Constitution. To have required the unanimous ratification of the thirteen States, would have subjected the essential interests of the whole to the caprice or corruption of a single member. It would have marked a want of foresight in the convention, which our own experience would have rendered inexcusable. Two questions of a very delicate nature present themselves on this occasion: 1. On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it? 2. What relation is to subsist between the nine or more States ratifying the Constitution, and the remaining few who do not become parties to it? 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. PERHAPS, also, an answer may be found without searching beyond the principles of the compact itself. It has been heretofore noted among the defects of the Confederation, that in many of the States it had received no higher sanction than a mere legislative ratification. The principle of reciprocality seems to require that its obligation on the other States should be reduced to the same standard. A compact between independent sovereigns, founded on ordinary acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach, committed by either of the parties, absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the MULTIPLIED and IMPORTANT infractions with which they may be confronted? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed, and with it the part which the same motives dictate. The second question is not less delicate; and the flattering prospect of its being merely hypothetical forbids an overcurious discussion of it. It is one of those cases which must be left to provide for itself. In general, it may be observed, that although no political relation can subsist between the assenting and dissenting States, yet the moral relations will remain uncancelled. The claims of justice, both on one side and on the other, will be in force, and must be fulfilled; the rights of humanity must in all cases be duly and mutually respected; whilst considerations of a common interest, and, above all, the remembrance of the endearing scenes which are past, and the anticipation of a speedy triumph over the obstacles to reunion, will, it is hoped, not urge in vain MODERATION on one side, and PRUDENCE on the other. “
It was understood by the State[s] and the sales team ( Madison and others ) The Constitution was NOT a suicide pact!
Finally: During Virginia’s ratification
Madison:
Give me leave to say something of the nature of the government.
Who are the parties to it? The people—not the people as composing one great body, but the people as composing thirteen sovereignties.
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