Allow me to correct you: “the nature” of a contract is to include binding terms in writing. The constitutional contract nowhere prohibits secession – period. Now you may believe in the validity of ‘unwritten laws’: that is certainly your right. I can only wonder what you would say if your finance company advised you that you owed another 36 (or 72, or 144) car payments above and beyond what your contract specified, in writing, simply because that was their understanding of “the nature of the contract.”
It could have been legal if they had either passed an amendment giving states a unilateral right to secede or even if the congress as a whole voted to allow a state or states to depart the same way as congress votes as a whole to admit new states. The South attempted neither and they may well have been successful if they had tried. Instead they chose open rebellion.
No amendment was required: as Senator Toombs noted at the time, the Tenth Amendment declared, in writing, that all powers not delegated nor prohibited (including, by definition, secession) by the Constitution were reserved to the people of the States. The written words of the Constitution trump any supposed ‘unwritten law’...
Jefferson had no role in writing the Constitution...
Your arguments are perfectly compatible with an ‘unwritten law’ foundation. You seem to suggest that those who had “no role in writing the Constitution” could not possibly understand its terms. You would most certainly be correct, if the compact was composed of secret handshakes, confidential agreements, and ‘unwritten laws.’ That, fortunately, is not the case. The Constitution is a written document, and it is quite specific: powers not delegated nor prohibited are reserved, not to the federal government (as the proponents of ‘unwritten law’ seem to suggest), but to the States and their people. As Mr. Madison observed:
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
Nowhere does the Constitution ‘define’ a federal power to prevent secession; rather, the States retain that power (among those which are “numerous and indefinite”). This is perfectly in keeping with the written terms of the Tenth Amendment.
But exactly how was the south being oppressed by the Federal Government?
I have addressed this point previously (Post #372).
Allow me to ask you a somewhat related question: if the citizens of another State violated their written obligations under the Constitution, and the federal government refused to enforce those written obligations, would you take exception to their conduct? Would you consider either entity to be in compliance with the written terms of the compact?
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377 posted on 1/2/02 5:50 PM Pacific by Who is John Galt?
What on earth are you pushing? That is NOT what the 10th amendment says.
In any case, consider:
(1) if, because of the Tenth Amendment, the states retain all powers not delegated to the federal government, and
(2) if the federal government has not been delegated the power to prohibit the secession of a state, then
(3) it must follow that each state retains the power to prohibit the secession of a state, and Ohio has the power to prohibit the secession of South Carolina.
What's wrong with that idea?
You were quoting Justice Scalia earlier. Consider also:
'The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the States or to the people. It added nothing to the instrument as originally ratified.''
United States v. Sprague, 282 U.S. 716, 733 (1931).
''The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.''
United States v. Darby, 312 U.S. 100, 124 (1941).
Also, from the ACW moderated newsgroup:
The Constitution is a "compact" ordained by "the People of the United States, and not by the States in their sovereign capactities. Martin v. Hunter's Lessee, 14 U.S. 304, 324-325 (1816); and see also Shively v. Bowlby, 152 U.S. 1, 34 (1894), and Cantwell v. Connecticut, 310 U.S. 296, 307 (1940) (referring to it as the "federal compact").
Madison referred to it as such in the previously mentioned letter to Daniel Webster. Even secessionist leaders of the late war of rebellion admitted that it was a compact, and argued a "breach of compact" as a ground for secession.
Admitting, as one must, that the Constitution is a "compact," this fact has legal ramifications all its own. The terms "compact" and "contract" are synonymous. 3 Story, Commentaries on the Constitution of the United States, § 1390. By its very nature, a compact creates rights as well as obligations. See Green v. Biddle, 21 U.S. 1, 92-93 (1821).
The Constitution speaks to the binding nature of the compact entered into when it prescribes that all executive, legislative, and judicial officers of the federal government and the States "shall be bound by Oath or Affirmation, to support this Constitution . . . ." See Art. VI. It is not simply that they must take an oath, but that they are bound to support the Constitution.
This returns, of course, to the nature of compacts and contracts, and the manner in which they may be rescinded. It is universally accepted that a compact cannot be rescinded without cause, and without making reparation for the loss caused to the other party or parties to the compact which have been expended on their behalf in contemplation of their rights and duties. If the same were not true of governments, we could have no binding relations between people or governments, nor might we expect any regular or permanent rights or duties. The existence of binding obligations and rights is necessary to the very existence of any government. See Kennett v. Chambers, 55 U.S. 38, 50 (1852).
Therefore, it is a violation of the Constitution AS A WHOLE, to attempt to withdraw from the binding compact without some just cause. It is in this sense, if in no other, that the right of secession without cause cannot be a right reserved by the States. They have already given up this right by entering into the Constitution and pledging to support it. Since this is the case, it takes no explicit withdrawal of the right to secede without cause to prohibit the exercise of that right. The Constitution is, itself, the ground upon which the right to secede without cause was killed.
[end]
No one who fairly considers the whole record will buy off on this legal secession crap, and no one who willfully misquotes the language of the document will be able to sway any but the most hateful.
Walt