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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
Mr. Madison’s words are clear. And given that I quoted Mr. Madison’s words, and not my own, it would appear that Mr. Madison ‘dragooned’ himself into supporting 'his own interpretation.' If you consider that interpretation “false,” your disagreement is with him.
”Neither of them can have a greater right to break off from the bargain, then the other or others have to hold them to it...[a single one] of the parties, owes fidelity to it, till released by consent, or absolved by an intolerable abuse of the power created...."
I believe I have addressed these comments previously. Mr. Madison appears to speak of equal rights, not superior rights. And please note: the rights he describes are those of the parties to the compact, not the rights of any entity created by it. In other words, the federal government is not even mentioned here – apart from the following: “by an intolerable abuse of the power created...” And, as we know from Mr. Madison’s Report, the States were to judge regarding the ‘tolerability’ (or lack thereof ;>) of abuse by the federal government. Your argument that only the federal government (via the high court) may determine whether it’s own abusive acts are ‘tolerable’ is literally laughable – and directly contradicted by Mr. Madison and Mr. Jefferson as well.
“The advice nearest to my heart and deepest in my convictions is that the Union of the States be cherished and perpetuated. Let the open enemy to it be regarded as a Pandora with her box opened; and the disguised one, as the Serpent creeping with his deadly wiles into Paradise."
-James Madison, Advice to my Country, 1834
Since I have disabused you of the notion that an act of Congress can supercede the Constitution, are you now suggesting that mere “advice” may do so? Or are you only pointing out that Mr. Madison’s views changed as he aged – something noted by many historians? In either case, I will observe that Mr. Madison’s “advice,” expressed over four decades after the Constitution was ratified, is somewhat less relevant than the statements he made prior to and immediately following ratification.
He means you.
Oh – now you’ve hurt my feelings. And I was just getting over Ditto’s statement regarding my constant resort to the words of Thomas Jefferson and James Madison: “Great role models you have --- nothing honorable about them or their cause.”
While I’m moping, perhaps you would you care to discuss the secession of the ratifying States from the so-called ‘perpetual union’ formed under the Articles of Confederation? No? How about the palpably unconstitutional Alien and Sedition Acts – which were enforced by federal judges? I thought not. What was it, again, that you were saying about "the whole record?" And what were you saying about “cherry picking?”
;>)
You do seem to have trouble with the word “reserved,” don’t you? (For someone who quotes so many legal opinions, I would have thought you would have access to a law dictionary. But perhaps such a reference would just restrict your interpretations... ;>) The term describes the action of a party to an agreement, when that party retains something for themselves. Note the language of the Tenth Amendment: “powers” are “reserved,” not delegated, and therefore (as Mr. Madison noted at length in Federalist No. 39) are retained by the States and their people. Finally, it may be news to you, but Ohio never had the independent power to determine the form of government in another State: Ohio could therefore “reserve” no such thing.
'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).
What’s your point? I have stated repeatedly that the States reserved the right of secession, and quote ratification documents in support of that argument. And, as we all know, the ratification documents in question predate the Tenth Amendment. Frankly, this quote tends to support my argument (“powers not granted to the United States were reserved”) more than it does yours. Thanks!
''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).
Thanks again: “all is retained which has not been surrendered!”
Also, from the ACW moderated newsgroup...
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.
Back to the ‘intolerable oppression’ (“just cause”) argument? As Mr. Jefferson and Mr. Madison made abundantly clear, each State as a “party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.” The States were to judge regarding “just cause” – and your ‘federal-government-as-sole-judge-of-its-own-abusiveness’ argument is as ludicrous as ever.
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.
Pardon me if I prefer the writings of the Founders to your “newsgroup” analysis. I must inquire: are you sure the author of this ‘gem’ wasn’t referring to the ‘Articles’ rather than the “Constitution?” Tell us, Walt: why won’t you discuss the secession of the ratifying States from the so-called ‘perpetual union’ formed under the Articles? Hmm?
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.
"The whole record?" That reminds me: wouldn't you agree that no one who willfully ignores two of the most important episodes in constitutional history, while simultaneously bellyaching about “cherry picking” and “the whole record,” looks like anything other than a complete and utter hypocrite? Hmm?
Would you care to discuss the secession of the ratifying States from the so-called ‘perpetual union’ formed under the Articles of Confederation? No? How about the palpably unconstitutional Alien and Sedition Acts – which were enforced by federal judges? I thought not. What was it, again, that you were saying about "the whole record?" And what were you saying about “cherry picking?”
;>)
Because States didn’t delegate powers to other States. And States did not attempt to force States back into the Union against their will; the Federal government did, thus usurping an undelegated power.
The people of the several States delegated a specified and limited portion of their sovereignty to the newly created Federal government. Over and over in the States ratification conventions, opponents of the new constitution were concerned that the Federal governments would claim powers beyond what the States specifically delegated. Federalists said this was false, that the only powers that the Federal government could legitimately claim were specifically laid out in the Constitution. All others remained with the States.
Just for the sake of argument, if your hypothesis is correct, then there would have been some move to coerce Rhode Island and North Carolina into the Union after Washington’s inaugural. The first thing Washington probably did was call out the militia and march on Raleigh and Providence and forces these ne’er-do-wells to get back in line. Did this happen? If it did, I’m sure you can produce the appropriate documentation. 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).
You really have to stand this quote on its head to get it to support your contention. What this says is exactly what the Tenth Amendment already says: The Federal government has no legitimate right to exercise any power or authority that is not specifically delegated in the Constitution from the people of the States to the Federal government. Anti-Federalists were concerned that someone in the future might try to assume some powers that were not intended to be granted by the original holders of sovereignty, the people of the States. (Now where would the Anti-Federalists get that idea?), so the Federalists assured them that this would never be the case, and to firm up the commitment, they included the IX and X Amendments.
Respectfully,
D J White