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To: x
To be sure, Clay's argument here isn't a constitutional one, but a practical and emotional one based on the consequences of secession,

True, but the Constituion isn't a moral or emotional contract, but a legal one.

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but it's clear that secession at will wasn't simply accepted as Constitution before 1860.

Yes it was. By some of the most brilliant legal minds of the era.

St George Tucker, (1803), James Kent (1826-1830), William Rawle (1829) and Joseph Story (1833) all considered secession a viable option. I've posted many of them for your consideration.

360 posted on 11/20/2006 2:24:41 PM PST by MamaTexan ( I am not a ~legal entity~....... nor am I a 'person' as created by law.)
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To: MamaTexan
St George Tucker, (1803), James Kent (1826-1830), William Rawle (1829) and Joseph Story (1833) all considered secession a viable option.

I don't recall any of them being at the Constitutional Convention. Madison and Washington were, and they both said it wasn't a legal option.

363 posted on 11/20/2006 2:33:49 PM PST by Ditto
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To: MamaTexan
True, but the Constituion isn't a moral or emotional contract, but a legal one.

I see gentlemanly concessions are lost on you.

St George Tucker, (1803), James Kent (1826-1830), William Rawle (1829) and Joseph Story (1833) all considered secession a viable option. I've posted many of them for your consideration.

Not true. Here's Story on the idea of secession at will:

"The constitution of the United States, then, forms a government, not a league; and whether it be formed by compact between the states or in any other manner, its character is the same. It is a government, in which all the people are represented, which operates directly on the people individually, not upon the states; they retained all the power they did not grant. But each state having expressly parted with so many powers, as to constitute jointly with the other states a single nation, cannot from that period possess any right to secede, because such secession does not break a league, but destroys the unity of a nation; and any injury to that unity is not only a breach, which would result from the contravention of a compact; but it is an offence against the whole Union. To say, that any state may at pleasure secede from the Union, is to say, that the United States were not a nation; because it would be a solecism to contend, that any part or a nation might dissolve its connexion with the other parts, to their injury or ruin, without committing any offence. Secession, like any other revolutionary act, may be morally justified by the extremity of oppression; but to call it a constitutional right, is confounding the meaning of terms; and can only be done through gross error, or to deceive those, who are willing to assert a right, but would pause before 'they made a revolution, or incur the penalties consequent on a failure.

"Because the Union was formed by compact, it is said the parties to that compact may, when they feel themselves aggrieved, depart from it; but it is precisely because it is a compact, that they cannot. A compact is an agreement, or binding obligation. It may, by its terms, have a sanction or penalty for its breach, or it may not. If it contains no sanction, it may be broken with no other consequence, than moral guilt: if it have a sanction, then the breach incurs the designated or implied penalty. A league between independent nations, generally, has no sanction, other than a moral one; or, if it should contain a penalty, as there is no common superior, it cannot be enforced. A government, on the contrary, always has a sanction, express or implied; and in our case, it is both necessarily implied, and expressly given. An attempt by force of arms to destroy a government, is an offence, by whatever means the constitutional compact may have been formed; and such. government has the right, by the law of self-defence, to pass acts for punishing the offender, unless that right is modified, restrained, or resumed by the constitutional act. In our system, although it is modified in the case of treason, yet authority is expressly given to pass all laws necessary to carry its powers into effect, and under this grant provision has been made for punishing acts, which obstruct the due administration or the laws. [Emphasis added]

I don't know about Kent. There are assertions on the Internet that he "implicitly acknowledged the reserved rights of the States" which are apparently changed from claims that he "explicitly acknowledged the reserved rights of the states and included secession among them." So there may be something fishy at work.

364 posted on 11/20/2006 3:02:58 PM PST by x
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