RE: But until the decision is overturned, unilateral secession as practiced by the Southern states was and is illegal.
Not as simple as that.
I respect the decisions of the Supreme Court, but I will not cede ULTIMATE authority to it when it comes to the LEGALITY of everything.
Most of us today have been taught the idea that nullification, like secession, is unconstitutional; and further, that it is a discredited political doctrine.
The federal government is absolutely supreme, thus the states are subordinate entities that must obey federal edicts – this is the reigning dogma in American politics, and one of the ideas that the elites are laboring to teach to school children. If you ask for proof, the supporters of this dogma (generally federal officials and those who benefit from the favor of same - surprise, surprise) will usually throw a quote from Abe Lincoln at you and tell you that ideas like nullification and secession died at Appomattox, Virginia in 1865. Why? Well, because that’s the place where Lincoln and those who supported his authoritarian ideals finally wore down those who disagreed, and forced their surrender on the battlefield. Thus, nullification and secession are ‘discredited’ political doctrines largely for the same reason that your claim to your wallet can be ‘discredited’ by a mugger in an alley.
However, others of a less philosophically rigid sort understand that physical force cannot discredit an idea.
Nullification has a long and interesting history in American politics, and originates in the Virginia and Kentucky Resolutions of 1798. These resolutions, secretly authored by Thomas Jefferson and James Madison, asserted that states, as sovereign entities, could judge for themselves whether the federal government had overstepped its constitutional bounds, to the point of ignoring federal laws.
Virginia and Kentucky passed the resolutions in response to the federal Alien and Sedition Acts, which provided, in part, for the prosecution of anyone who criticized Congress or the President of the United States.
Other instances followed, most famously in 1833, when South Carolina nullified the federal Tariff of 1828, which it deemed to be unconstitutional because it was specifically a protective tariff, not a revenue tariff. This act of nullification created a conflict between South Carolina and President Andrew Jackson, and nearly led to war before a compromise tariff was adopted.
And lest it be assumed that nullification and state sovereignty were political doctrines unique to the Southern states, it should also be noted that there were times when the Northern states also asserted them (in particular, see the Hartford Convention of 1814 and the various “personal liberty laws” that Northerners enacted in defiance of federal fugitive slave laws).
So going back to your appeal to the Supreme Court as the final arbiter to what is constitutional ( Dredd Scott notwithstanding).
What about the federal courts? Aren’t they supposed to determine the constitutionality of a law or a given action?”
Over time, nationalists — thanks primarily to Chief Justice John Marshall’s decisions early in the country’s history — have been very successful at planting the idea in the American mindset that our federal courts are the final arbiters of any and all constitutional issues, but there is actually no constitutional justification for this notion.
In Federalist 81, Alexander Hamilton remarked that there is “not a syllable in the plan under consideration [the Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution.”
So, The role of the federal courts and the final determination of constitutional issues in dispute is, in my opinion, the thing we ought to ponder.
Article III empowers the United States Supreme Court with legitimate authority over all “cases in law and equity arising under this Constitution,” and Article VI states that the Constitution is the “supreme Law of the Land…any Thing in the Constitution or Laws of any State to the Contrary not with-standing.”
As a result, it follows that the Court should have authority to rule in situations where violations of some clear constitutional provision are alleged to have occurred. NO ARGUMENT HERE THUS FAR.
However, what if the question before the court is not how the Constitution applies to a given matter, but if the Constitution applies to it at all? Or what if a verdict of the court introduces some NEW doctrine, and thus somehow changes the fundamental relationship of the federal government to the states and individual Americans?
Don’t tell me that this has never happened in US history.
The Dredd Scott decision and the dubious reasoning of Justice Taney is exhibit A.
In this case, the question has undergone a radical change. We are no longer considering an overt – or, as Hamilton once put it, “evident” – violation of a constitutional provision or prohibition.
In this case, we are dealing with the question of what are the delegated powers of the federal government and what are the reserved powers of the states and the people, of whether the federal courts, by involving themselves in a given matter, are somehow changing the Constitution and the framework of our country by fiat. In other words, the notion of federal judicial supremacy creates a ‘separation of powers’ issue (in some instances) because it makes the states subservient to an arm of the federal government in the matter of their reserved rights and status.
Further, it turns the idea of delegated powers on its head by giving the federal government final authority in the matter of the scope of its own powers, thus giving it the ability to re-invent itself and evolve beyond its authorized scope.
Also, consider how the steady politicization of the federal courts has affected our society at large, given the steady expansion of judicial power ( heck, we are but one justice away from the Supreme Court practically inventing new laws out of thin air in the 21st century ).
This issue came to light in a particularly noteworthy way following the 2000 General Election. When the matter of recounting votes was thrown into the courts, suddenly the media was filled with stories of how “Judge so-and-so” votes, or who appointed him, and whether he was a Republican or Democrat; but, interestingly enough, what was not being discussed was the fact that we were openly admitting that our court systems have become politicized, and that Lady Justice was no longer blind but actually on the take.
The politicization of our courts is now all but openly admitted as such, and some politicians and special interest leaders take considerable pride in their efforts to tip the scales of justice in their agenda’s favor. Consider any typical Senate hearing on the appointment of a federal judge or Supreme Court justice. Senators parade before the television cameras asking candidates how they feel on various litmus test political issues. Judicial appointments come down, not to whether the judge understands the Constitution and has a history of upholding the law, but to whether he passes the political litmus test of the dominant party! Thus, our sacred liberties under the law have slowly been supplanted by the advancement of political agendas operating in the halls of justice. Due to the efforts of the nationalists, we have lost the concept of federalism and the separation of powers. Anything and everything is now subject to being read into the federal Constitution, and politics reigns supreme.
The Constitution never foresaw the development of political parties or the way partisan wrangling would play havoc with our system of government, particularly how it would corrupt the courts.
As such, nullification is an important means by which states can defend themselves against partisan abuses of federal power.
The Constitution is imperfect in this regard, and, I believe, should be updated to provide for Thomas Jefferson’s solution to the clash of federal versus state authority and constitutional ambiguities:
But the Chief Justice [Federalist John Marshall] says, ‘there must be an ultimate arbiter somewhere.’
True, there must, BUT WHO IS THE ULTIMATE ARBITER IF GOD DOES NOT SPEAK TO US THE WAY HE SPOKE TO MOSES? Does that prove it is either party?
I believe the ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress, or of two thirds of the States.
Let them decide to which they mean to give authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our constitution, to have provided this peaceable appeal, where that of other nations is at once to force.
The means by which secession was done in the 19th century that led to the civil war, I will grant, was belligerent. But the North was not without its fault as well.
However, unless shown to me convincingly, I still believe that SECESSION is a right every state is given as ORIGINALLY INTENDED.
Yeah, it is as simple as that. You and I may disagree with what the court may decide but that doesn't change the authority of the court or making something Constitutional that they say is not.
Most of us today have been taught the idea that nullification, like secession, is unconstitutional; and further, that it is a discredited political doctrine.
Nullification by definition is a violation of the Article VI supremacy clause.
Thus, nullification and secession are ‘discredited’ political doctrines largely for the same reason that your claim to your wallet can be ‘discredited’ by a mugger in an alley.
They are discredited because it's impossible to reconcile them with the Constitution itself. To believe otherwise is to believe that some states have more power than other states do, and that is simply wrong.
Other instances followed, most famously in 1833, when South Carolina nullified the federal Tariff of 1828, which it deemed to be unconstitutional because it was specifically a protective tariff, not a revenue tariff.
Deemed by South Carolina. If Pennsylvania, cor example, said that no it was a revenue tariff and not a protective tariff then what made them wrong and South Carolina right?
And lest it be assumed that nullification and state sovereignty were political doctrines unique to the Southern states, it should also be noted that there were times when the Northern states also asserted them (in particular, see the Hartford Convention of 1814 and the various “personal liberty laws” that Northerners enacted in defiance of federal fugitive slave laws).
Claims that the Hartford Convention advocated secession are greatly exaggerated and I would point out that every personal liberty law that came before the Supreme Court was overturned, state's rights be damned.
What about the federal courts? Aren’t they supposed to determine the constitutionality of a law or a given action?”
Article III reserves that jurisdiction to the Supreme Court.
Over time, nationalists — thanks primarily to Chief Justice John Marshall’s decisions early in the country’s history — have been very successful at planting the idea in the American mindset that our federal courts are the final arbiters of any and all constitutional issues, but there is actually no constitutional justification for this notion.
Chief Justice Marshall noted, "It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each. If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply."
So my question is where is Chief Justice Marshall wrong? If not the Supreme Court then who?
However, what if the question before the court is not how the Constitution applies to a given matter, but if the Constitution applies to it at all?
Again, if not the Supreme Court then who?
Don’t tell me that this has never happened in US history. The Dredd Scott decision and the dubious reasoning of Justice Taney is exhibit A.
I've never said the Supreme Court has gotten everything right. But at the end of the day who are we supposed to trust the decision to?
However, unless shown to me convincingly, I still believe that SECESSION is a right every state is given as ORIGINALLY INTENDED.
With the consent of the other parties to the compact, yes. Unilaterally, no.
And yet Jefferson Davis's oration condemning Nullification, during his inauguration in 1861, was both powerful and dispositive. The Supremacy Clause is airtight in this regard: that any State remaining in the Union, so long as it does so, is positively bound by the Supremacy Clause and the federal Constitution.
The politicization of our courts is now all but openly admitted as such, and some politicians and special interest leaders take considerable pride in their efforts to tip the scales of justice.....
Conceded, and deplored. But Nullification, dead as it is, can offer us no relief from this plague of pleaders and their pleadings, their constant and restless forum-shopping and barratry, and the log-rolling of political-hack Justices.
No, you refuse to be convinced.