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."
Maybe. But if could be done in concert outside of Washington.
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.
Not at all. States don't operate in a vacuum. If a state leaves and if it's actions have a negative impact on the other states then why don't those states have any protections?
Article I, Section 10, Clause 1 through 3. Article IV, Section 3, Clause 1. Basically Article IV says that no state may be admitted without the consent of the other states as expressed by a vote in Congress. Once allowed to join, states cannot split, combine, or change their border by a fraction of an inch without the consent of the other states as expressed through a vote in Congress. Article I, Section 10 lists a whole list of actions that could impact the interests and well being of the other states and which are forbidden entirely or allowed only with the consent of the other states as expressed though a vote in Congress. If states can join only with permission and once in can alter their borders only with permission and forbidden from a whole host of actions without permission then it isn't a stretch to conclude that permission is needed to leave as well.
Very well expressed. I believe that’s what the founding fathers were trying to establish.
There is no point in asking such questions if the question of whether a state can leave the union at all isn't answered first.
I believe that yes they can, through the same process that allows states to join in the first place - with the consent of the other states.
Why does TX need the consent of Nancy Pelosi or of Connecticut to walk away? In a marriage, either partner can end the contract with or without the consent of the other party. It may not be the right decision with a sacred covenant as important as marriage, but that is an option that we have decided people have and should have. I think the sates should have that same option. I hope they don't exercise it frivolously, but that power would help to reign in the excesses of our Congress and of the thug in our White House.
Denial of breach happens all the time. There are close cases, where the denial is plausible. However, many cases of such denial are mere posturing to escape the known penalty for the breach. Where there is an arbiter, and good sense, the sham denials will fail. Where there is no arbiter, it still comes down to breach. Again, in our escape from England, the only arbiter was our willingness to fight for our freedom. Sometimes it comes to that. In contract law it is called self-help, and all other things being equal, it is perfectly acceptable.
As for the analogy of the country club, no, I insist I did not choose it; I found it already in use in the thread. Noting that you had accepted it as a valid way to discuss the issue, I merely tried to point out an absurdity in following your logic to its natural endpoint.
As for the validity of the contract analogy, your quote of Madison certainly suggests that he did regard it as a valid analogy. Again, you appear to be taking flight to some nebulous super-contract concept because the ordinary law of contract is not helping your case.
As for his point, that no state should leave the Union at will on the basis of conflicting constitutional interpretations concerning slavery, he is certainly persuasive. However, his words are not law. Indeed, in the same letter he asked that these comments not be published for fear they would be misconstrued, precisely because, as he acknowledged, they were a woefully incomplete treatment of the subject matter. And they were incomplete, because the notion of leaving for light causes (“at will”) is always in tension with the natural right to be free of tyranny, what I will term a “for cause” separation, and such tension begs for more analysis than he provided.
Many things in the law deal with resolving the conflict between two or more legal principles that apply to the same subject matter. In general, the solution is to try to accommodate as many of those conflicts as possible, but where such conflict cannot be resolved, the higher authority must trump the lower authority. The inviolable natural right of secession from tyranny, based on the God-given right to be free, was the primordial basis for the American Revolution; it was, and is, the peak of the mountain from which flows all other law, and that must surely trump any power of the non-seceding states to compel a state to remain a prisoner to tyranny against its will.
BTW, contract is an immense concept. It entails a great deal more than that paper you sign when you buy a house. It is founded on the bedrock principle of keeping your promise. Even the most profound of transactions, with enormous consequences, can be describes in terms of contract, as, for example, the covenant of God with Abraham. In the grand scheme of things, I would think our Constitution, as important as it is, comes in at a significantly lower notch than that.
As for Articles I and IV, just to be sure, I went back and reread those articles. While I can find language that assumes a continuity of the union, I can find nothing, not even as a matter of remote inference, that postulates whether such union should be sustained involuntarily when tyranny spoils the stew.
An affirmative denial of the right to leave for cause is a tad more complex a concept than presumed continuity, and the fact that the Declaration specifically asserts a natural right to throw off tyranny makes it seem unlikely, to me, that the same group of people (more or less) would turn right around and hide in the Constitution a diametrically opposite denial of such right in some highly attenuated “anti-secession penumbra” that only the chosen can see in the text. I am blind to it. You would do me a great kindness if you could explain, in rigorous terms, just how you build your inference of the same.
As for your rant against the South’s implementation of their right of secession, it is beyond the present scope of my argument to evaluate the relative niceties of the war in the South. I am arguing for the principle. Anybody knows that principles can be botched in practice. Perhaps we can defer that portion of the discussion until we come to terms about the propriety of unilateral, peaceful secession?
As for priority of Constitutional law over international law, in general I agree with you, except as imposed upon by lawful treaty, which in any case I do not think even treaties should or can abrogate any fundamental rights under the Constitution.
However, my point in citing international law is that because there is no unambiguous constitutional provision prohibiting secession, and there is international consensus that secession is always on the table for an oppressed people, therefore secession is on the table.
As for Nuremburg, the point there, and I only belabor it because you will not deny it directly but you will not admit to it either, is that its not hard to see that Germany’s genocidal laws were wrong, and that it was right to trump them with the common sense of humanity that genocide is so obviously criminal there need be no written law against it to find guilt in the breach of it.
And if that is true at the extremes, and I hope you agree that it is, then it may be true under less severe conditions, in proportion to the circumstances.
I will now be retiring from this conversation for the evening. If you are still interested in responding, I’ll be back later. G’night.
Article I Section 10.
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
Sure looks like a listing of things that states are prohibited from doing all right but I STILL can't discern a single word or phrase about secession.
Article IV Section 3.
New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
I'm afraid I still can't see a thing about secession there! (Do I need some special glasses or something so I can see what is written between the lines in invisible ink?)
I will note that what IS plainly written there was completely overlooked by your pal Lincoln and his sock puppet congress when the state of West Virginia was formed.
AMEN and Amen!
Well said! Well said indeed!
Thank you for so clearly stating what some of us have been trying to say all along!!
Article IV, Sec 3.
The process for admission is spelled out clearly. Implied in that is the process to reverse admission. I.E, both parties agree. It is much like a divorce, (breaking a marriage contract) and by breaking that contract, there are property settlements to be made.
How does one reimburse the people of another state if one state decided to secede? What of Federal property in Texas, say the Johnson Space Center, or Fort Hood, that belongs not just to Texas but to people of all the states who paid equally for that property?
The other question would be not with the original 13 states that were created under British Rule, formed the nation by ratifying the constitution and theoretically could revert to nationhood organically, or with Texas, that was an independent nation before they applied for statehood and could presumably revert to that model.
What of the other 42 states that were common US territories, acquired by purchase or treaty by the United Sates (i.e. the people of all the states) who were territories totally defined by Congress well before admission. Where is their standing? They were artificial creations of the United States. If Arizona secedes, does it revert to Mexico?
You are talking about the messiest divorce in history.
Realistically, we are well beyond secession. It won't happen. If Mississippi seceeds, does that mean that Washington can stop sending Social Security checks there? Do all Federal contracts at the ship yard end?
Realistically, we are well beyond secession of any type. It won't happen. But I would argue that if some states banded together, we could nullify some of the more onerous regulations barely implied in Congressional acts being imposed by zealot Federal regulators.
The EPA CO2 limits might be a good place to start. My guess is that the Courts would knock the EPA on their ass if they went after a couple of states that refused to enforce those regs. Even the Court can tell which way the wind in blowing.
I would advise that like minded states band together to invoke nullification of extra-constitutional federal regs being imposed by an out of control bureaucracy as a way to bring true Federalism back.
You make a good point. It isn't necessarily an inevitability. However I think you are wrong. 0bama would definitely use US military to prevent a secession. Whether the US military would shoot at US citizens is another question worth pondering, however.
I don't think secession is necessary at all. However, I do think the states should reassert and reestablish their powers and autonomy under the 9th and 10th amendments. Our govt has become less Federal and more Central since the Civil War. That pendulum needs to swing the other way for awhile.
Not without some form of mediation by a judge that ensures that the interests of both sides are protected. Texas walked out and left responsibility for debt and national obligations to the remaining states, and with every piece of federal property it could get its hands on. If you want to carry on the marriage analogy then I imagine that would constitute abandonment and various forms of theft.
Most of them are actions that if taken could have a negative impact on the other states, hence the need for permission or the fact that they were prohibited. Secession is another action that could have a negative impact on the other states, hence the need for permission to do that should be implied.
No, just an understanding of the Constitution. If s state cannot join without permission and once in cannot combine with another state without permission or split without permission or change its borders by a fraction of an inch without permission, then it's not hard to conclude that it needs permission to leave as well.
"Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word 'expressly,' and declares only, that the powers 'not delegated to the United States, nor prohibited to the states, are reserved to the states or to the people;' thus leaving the question, whether the particular power which may become the subject of contest, has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the articles of confederation, and probably omitted it, to avoid those embarrassments. A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations, found in the 9th section of the 1st article, introduced? It is also, in some degree, warranted, by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a constitution we are expounding." - Chief Justice Marshall, McCulloch v Maryland, 1819
Okay, but how cool would it be to get a personal response to a letter from Antonin Scalia?
NOW I get it! The founders saw fit, and were smart enough, to specifically list all those other things in language that is crystal clear but left the subject of secession for the superior intellect of the chosen to figure out! < /sarcasm>
It's nice to see when the lightbulb finally goes on. </sarcasm>
So....you're saying there is no such thing as implied powers?
Then why didn't those learned souls who wrote the document simply say that it is prohibited? Do you suppose that they were incapable of doing so? Or is it possible, as I believe it to be, that they specifically chose not to include it in their list of items prohibited to the states because they wanted those free and independent states who comprised the union to have a final and complete check on the government they were creating?
B I N G O !!!
That is exactly what I am saying!
I hold the founders in VERY high regard and feel quite sure that they were capable of saying EXACTLY what they meant and did so! NO implications or penumbras needed!
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