Posted on 02/17/2010 9:08:09 AM PST by Palter
Is there a right to secede from the Union, or did the Civil War settle that?
Certain Tea Partiers have raised the possibility of getting out while the getting's good, setting off a round of debate on legal blogs. The more cerebral theorists at the smart legal blog The Volokh Conspiracy question whether such a right exists.
Enter a New York personal injury lawyer, and Supreme Court Justice Antonin Scalia.
The lawyer, Eric Turkewitz, says his brother Dan, a screenwriter, put just such a question to all of the Supreme Court justices in 2006 -- he was working on an idea about Maine leaving the U.S.and a big showdown at the Supreme Court -- and Scalia responded. His answer was no:
"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.") Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.
I am sure that poetic license can overcome all that -- but you do not need legal advice for that. Good luck with your screenplay."
(Excerpt) Read more at voices.washingtonpost.com ...
But yet they seceeded from Virginia.
Kinda hypocritical, wasn't it?
I didn’t say it was reasonable to ask for a repayment. I’m saying that it is unreasonable to think you can simply untangle a state from the union of the states. States are not independent entities which have some trivial “membership” in a club that they could quit anytime they want. They are an integral part of the whole that is the “United States”, one nation under God, Indivisible.
Oh OK, I see what point you were trying to make. Thanks for the clarification.
I believe 32 states currently disagree with you and your assessments.
The Constitution is specific and didn’t require 2000 plus pages of ambiguity. The reason there is no specific procedure for a state to opt out is because the process is retained by each individual state and not by the Federal Government.
There is no specific right of the Federal government stated in the same Constitution other than national defense, interstate commerce, and diplomacy. All other rights are retained by each state according to it’s own unique State Constitution. The individual sovereignty of each state is determined by the people who reside within. That is why there was no specific circumstances within the 9th or 10th Amendment spelled out as a federal provision. The state(s) retain the power to identify unique circumstances of federal encroachment as defined by the people of said state(s).
The government has become a clearing house of the redistribution of taxes to states,but there is nothing in the Constitution that allows that behavior. Using our confiscated wealth (taxes) to enrich special interest and enterprise within a state is not a specific power enumerated to the Federal government by the Constitution.
Using the argument that the states are forever indebted for services they did not ask for is in no way a binding contract. Business interests and associations change all the time because nobody is forever obligated to binding circumstances because of past business associations.
Review of law by precedent (distribution of federal tax money) rather than original intent does not obligate a state to forever be bound to the federal government.
The use of the public trust to buy favor is not a federal power found anywhere in the Constitution either.
Consider that most of the schemes government uses to distribute tax proceeds to the state are not granted by the Constitution, but have been made rule by executive order or legislation with less than 2/3 of states approval, which is what is required for any constitutional amendment that changes the statutory provisions of the constitution.
America is a Constitutional Republic because of the 2/3 majority required for those statutory changes in the Constitution. Where was there an amendment in the Constitution ratified by a 2/3 majority of states that changed our legislative process to a Simple majority (democracy)?
The key to the sovereignty problem is that judicial process no longer is based on founding documents, but case law precedent. Getting back to the original founders intent (The Federalist Papers) clearly identifies the federal government has gone far and beyond their original specific contract with the states.
West Viriginians saw themselves as part of the Union more than part of Virginia (which culturally, economically, and geographically, the western part of the state was completely separate from Richmond).
The way I always viewed it is that Richmond seceded from us. (I was born there).
I have always thought that West Virginia should have become “Virginia” during and after the war and the remainder of Richmond’s territory should have been called “East Virginia.”
The Union regiments from West Virginia at Antietam were called “Virginia” units. We should have gotten the name in the divorce - like Tina Turner did.
If we had a Marxist dictatorship, the Constitution would be by very definition trashed. Even if there were an enumerated or implicit right to unilateral secession in the Constitution, (which there isn't) the dictatorship would ignore that and attempt to impose their will.
That is when the people revert to their God-given Right to Revolution under Natural Law.
Well politicians are good at achieving their aims while at the same time not making sense.
“When in the Course of human events...”
The problem is... COTUS does specifiy the cure. SCOTUS protects the COTUS, and if SCOTUS fails, then congress should impeach them! So, the voters already have the power to clean up congress & then SCOTUS.
If only we could get a majority of voters to agree!
My thought is that the battle over rights to the interstate highways and federal parks would lead to the biggest law suit in the history of the planet.
A New Yorker would say, “Jesse Helms used my tax dollars to build that road in NC. I want it back.”
Actually it was your comment that was irrelevant since the topic of the thread was the right to secede, not the right to rebel. But I doubt you read that far to begin with.
...which is the reason why I would ban your ass in a second if I were a mod.
Which is the reason why you don't begin to meet the requirements expected of a mod, as I pointed out to you on another thread.
Not at all. The vote wasn't over the concept of secession. It was over whether or not to repudiate their ratification of the Constitution and leave the United States.
The people of West Virginia were perfectly consistent in wanting to remain in the United States, either as part of Virginia or as part of their own state. A state, by the way, which was something they'd been talking about since the Revolution but which Virginia, which held the power, would never allow.
It's Virginia that was hypocritical for demanding the right to secede for itself, but denying that same power to its people.
That’s true, and it was largely a matter of geography. Eastern Virginia is much more suitable for the type of large-scale agriculture that required slaves. Western Virginia and what is now the state of West Virginia is not due to the mountains, and there were relatively few slaves and slaveowners there. Plus, the western counties didn’t feel any particular attachment toward the planter aristocracy in Richmond and the Tidewater. The Appalachians, Blue Ridge, and Smokies were by no means friendly to the Confederates.
I’m not sure 100% of the accuracy of this story, but when I was attending James Madison University in Harrisonburg, a history prof I had said that Rockingham County, which contains Harrisonburg, stayed in Virginia by *one* vote, keeping all of the Shenendoah south of the Potomac in the Confederacy. The irony in this is that Rockingham County became part of two of the most famous military campaigns of the war—Jackson’s 1862 Valley Campaign (most notably the Battle of Port Republic, just outside Harrisonburg) and Sheridan’s 1864 response.
}:-)4
It always surprised me, as I studied history in school, how West Virginia didn’t break away from Virginia prior to 1862. Those western counties were always so distinct from the rest of the Commonwealth that in retrospect, it just seems obvious that there was no way to hold antebellum Virginia together, even throwing out Virginia’s secession from the Union.
}:-)4
I agree with much of the comment by Freeper FateAmenableToChange in #5. Scalia's larger point might be that he doesn't forsee this issue EVER making it to the SCOTUS, but why? Does he see it as being out of the jurisdiction of the courts or extra-constitutional for that matter? I would like to see him expand his thoughts on the subject.
Still in all I am just dumbfounded by his curious observation that the Civil War settled the matter of secession. It's as if after a single battle in a larger war against tyranny the loser is eternally obligated somehow to be under the heel of the winner. That the loser of a single battle and some other lesser skimishes cannot regroup, rearm and reorganize for a counter-attack just takes my breath away.
What you said.
LOL
I remember the big dig project in MA and me thinking why am I paying for that road up there when I am down here plus many of the unions were on the take with that project.
Actually I still wonder why the hell did my money pay for a project up in MA when I am down here
He’s not only full of it, if you check his past posting history, I think this newbie is a troll flying under the radar.
SNIFF SNIFF....
Even today, I try to explain life in West Virginia by saying, “Imagine Albania with a sadder history....”
The reason that Richmond kept control of the western counties is pretty simple - people and space. The western counties were about the same size as modern Virginia but modern Virginia had four times as many people. I can’t even begin to imagine how someone in, say, Roane County would ever get news out of Richmond in 1840. Even today, it would take 7 hours by car to get between the two.
So, there were not a lot of people who were spread out over land that only crazy people would try to live on. My guess is that Richmond didn’t exercise much day to day control over them.
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