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.
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.