Posted on 02/17/2010 9:28:36 AM PST by Para-Ord.45
You've got to love that Antonin Scalia answered a letter from a screenwriter asking for tips on a screenplay involving Maine seceding from the union:
"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."
Who decides it's bad law? Forget extremes like the Holocaust, that's a simplistic example of a bad law. Who decides today what is a bad law? Abortion? Many say it is, many others say it is not. Here in Kansas we had a man decide that it was a bad law and shoot an abortionist to death. He was tried and convicted of murder. Should people advocate rebellion or secession over it? Would they be justified in declaring the pact to be broken because abortion is legal? Why are they right and the other side wrong? It is not a matter of saying "It's a bad law and you don't have to obey it" without also saying who gets to decide good law from bad?
However, you have yet to demonstrate there is any proto-constitutional provision that specifically enforces perpetual, involuntary union among the states. I am not aware of such. I may have missed it. Please enlighten me.
Nor have you been able to demonstrate what gives some states more protections under the Constitution than others. But let me clarify by saying I do not believe that the Union has to be forever or that states cannot leave. I say that it has to be a mutual decision between those leaving and those staying.
Which is why the 10th Amendment has that whole "delegated to the United States and prohibited by it to the states" part.</sarcasm>
We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness—-That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or abolish it, and to institute a new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient Causes; and accordingly all Experience hath shewn, that Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by abolishing the Forms to which they are accustomed. But when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security.
Stuff your sarcasm and show me where secession is prohibited the states by the Constitution!
Don't bother with any of your implied crap or things that can only be found in shadows! Show me the words in plain English!
Remember, long ago people referred to this country as "these United States" and not "the United States." It is a willing association of states based on common protection and interest.
The principle, on which the war was waged by the North, was simply this: That men may rightfully be compelled to submit to, and support, a government that they do not want; and that resistance, on their part, makes them traitors and criminals.
No principle, that is possible to be named, can be more self-evidently false than this; or more self-evidently fatal to all political freedom. Yet it triumphed in the field, and is now assumed to be established. If it really be established, the number of slaves, instead of having been diminished by the war, has been greatly increased; for a man, thus subjected to a government that he does not want, is a slave. And there is no difference, in principle—but only in degree—between political and chattel slavery. . . .
The North has thus virtually said to the world: It was all very well to prate of consent, so long as the objects to be accomplished were to liberate ourselves from our connection with England, and also to coax a scattered and jealous people into a great national union; but now that those purposes have been accomplished, and the power of the North has become consolidated, it is sufficient for us -— as for all governments—simply to say: Our power is our right.
In proportion to her wealth and population, the North has probably expended more money and blood to maintain her power over an unwilling people, than any other government ever did. And in her estimation, it is apparently the chief glory of her success, and an adequate compensation for all her own losses, and an ample justification for all her devastation and carnage of the South, that all pretence of any necessity for consent to the perpetuity or power of government, is (as she thinks) forever expunged from the minds of the people. In short, the North exults beyond measure in the proof she has given, that a government, professedly resting on consent, will expend more life and treasure in crushing dissent, than any government, openly founded on force, has ever done.
And she claims that she has done all this in behalf of liberty! In behalf of free government! In behalf of the principle that government should rest on consent!”
Lysander Spooner
So would you agree that the other sovereign entities can expel a state against its will?
It is a willing association of states based on common protection and interest.
And bound by the same Constitution that protects all of them equally. So if a state walks out of the Union and repudiates responsibility for debts and obligations, and takes with it every bit of community property it can get its hands on without compensation, then what are the other states supposed to do? Sue? Where are the protections for the remaining states under circumstances like that?
Don't bother with any of your implied crap or things that can only be found in shadows! Show me the words in plain English!
I can understand why 'implied crap' might make you have to think and that would make your head hurt.
I agree that an arbitrator is certainly a preferable state of affairs, and that disunion should be avoided as long as any lesser measure might achieve the removal of tyranny.
However, where no arbitrator is available, all that remains is an appeal to the consciences of the citizenry, and the taking of measures necessary to secure liberty, the “legal” opinion of King George III notwithstanding.
As for your constant reliance on two-party consent for both entry to and exit from a contract, such reliance is misplaced. True, a contract must be entered with mutual consent. But where one or more material terms of the contract have been breached by one party, and no effort of the nonbreaching party to secure a cure has succeeded, the requirement for mutuality of consent is voided, and it only remains to the court to ensure a just separation, i.e., no unjust enrichment, etc.
As for the validity of the country club analogy, I did not raise it, I merely entered in to an ongoing use of it, although I would still hold that a country club membership certainly could be written to provide equal protection and rights to all members, and thus be very like a constitution. I am sorry if you feel it is inappropriate, but you apparently did not feel that way until I forced the analogy to walk on all fours. That reality on the ground is precisely why contract law has evolved in the direction it has, and unfortunately it does not support your premise of mutually agreed upon termination where a substantive breach has occurred.
As for “pretending” secession is legal, as you say, it is hard to do that when one can find no constitutional provision making it illegal. Whether to do it or not then ultimately rests in the hands of those people who believe they live under tyranny. The federal government has a vested interest in its own continuance, and will naturally have a bias to its own survival. It cannot be relied on to render a fair and impartial decision.
Who then can set a people free? There is no accepted international legislative or judicial body to act as arbiter. There is, however, international law, which presently asserts the right of any group of indigenous people to separate from an oppressive government to secure their own national identity.
BTW, you underestimate the relevance of the Holocaust in fostering such a law. It was genocide of that very kind, and Nuremburg in particular, that is in view as the evil to be prevented by always recognizing what our founders saw so early on, that we, and any people, have, and always will have, an unbridgeable right to live in freedom.
Agreed. If you're answering a serious legitimate Constitutional question.
But what if the other side denies the contract has been breached? What makes them wrong and the first party right? Madison wrote, "The characteristic distinction between free Governments and Governments not free is, that the former are founded on compact, not between the Government and those for whom it acts, but between the parties creating the Government. Each of those being equal, neither can have more rights to say that the compact has been violated and dissolved, than every other has to deny the fact, and to insist on the execution of the bargains." Where is he wrong?
I am sorry if you feel it is inappropriate, but you apparently did not feel that way until I forced the analogy to walk on all fours.
Well I've seen worse - one person around here actually compared the Constitution to the Publisher's Clearing House Contest. But the anaolgy was your choice, and I believe any analogy that reduces the Constitution to the level of an ordinary contract is too simplistic. The Constitution is more than that because of the seriousness of the repercussions that come from violating it.
As for “pretending” secession is legal, as you say, it is hard to do that when one can find no constitutional provision making it illegal.
But a simple look at Article I and Article IV makes it clear that implied in the Constitution is the requirement that states leave the same way they came in - with the consent of the states.
Whether to do it or not then ultimately rests in the hands of those people who believe they live under tyranny. The federal government has a vested interest in its own continuance, and will naturally have a bias to its own survival. It cannot be relied on to render a fair and impartial decision.
Tyranny of who? How can you say that states can decide that they live under tyrannical conditions, then condone tyrannical acts on their part to escape it? When the Southern states seceded they walked away from any responsibility for national debt or national obligations, leaving those with the remaining states. They took every bit of federal property they could get their hands on without compensation. And were in a position to cut off the western part of the U.S. from access to the sea via the Mississippi at a whim. And in your world, the only choice the remaining states had was to sit and take it? That the seceding states could use the Constitution as a club to beat the remaining states with and they had no recourse under the Constitution? No protections? How can you say that states can flee tyranny and then impose their will on the remaining states in doing so? Which side is the tyranny really falling on?
Who then can set a people free? There is no accepted international legislative or judicial body to act as arbiter. There is, however, international law, which presently asserts the right of any group of indigenous people to separate from an oppressive government to secure their own national identity.
International law, especially unwritten international law, does not supercede the Constitution in this country.
BTW, you underestimate the relevance of the Holocaust in fostering such a law. It was genocide of that very kind, and Nuremburg in particular, that is in view as the evil to be prevented by always recognizing what our founders saw so early on, that we, and any people, have, and always will have, an unbridgeable right to live in freedom.
And I think you exaggerate any comparison with Nazi law and what is going on in this country.
That's what I thought!
There isn't any language in the Constitution that prohibits secession to the states so you and your ilk have no choice but to resort to the fallacious idea of "implied". Well I can't read implied, or shadows. Further, I seriously doubt that the folks who actually wrote the Constitution would have resorted to implying anything as they were very clearly capable of using the English language to express their exact meaning!
One state cannot tell another state what it can do or with whom it can or cannot associate itself any more than I can impose those things on you.
If it is a free association, then that would make sense. The only possible hindrance I can see from a strict constitutional point of view is that is not a power given to the federal government, although it could be considered as reserved to the states. But to expel a state, the states would be acting in concert, which is pretty much the definition of the federal government in the first place.
Where are the protections for the remaining states under circumstances like that?
You are adding extra unecessary complications beyond the basic question of whether a state has the power to disassociate itself from the rest of the union.
The answer to that is no. Just as it takes agreement of the other states to admit a new state to the Union, so it takes agreement of the other states for a state to leave the Union.
Since I am admittedly unable to discern these supposed implications on my own would you please be kind enough to point me to the exact sections and clauses of these articles you believe to contain them?
Would you be kind enough to point us to the place in the Constitution where that is spelled out? I am having great difficulty finding any such language in the document.
Fallacious only to those without an understanding of the Constitution.
Why not? Where does the Constitution prohibit it?
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