Replies

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 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?”

;>)

You quote Madison when he suits you, and discount him when he does not.

Madison made clear that intolerable abuse -would- be a reason to rend the national compact; all the quotes you provide speak to that situation-- they say and imply nothing about legality. Madison thought that legal, unilateral secession was clearly outside the law, as this letter shows.

In March, 1833, he wrote to William Cabell Rives as follows;

"The nullifiers it appears, endeavor to shelter themselves under a distinction between a delegation and a surrender of powers. But if the powers be attributes of sovereignty & nationality & the grant of them be perpetual, as is necessarily implied, where not otherwise expressed, sovereignty & nationality are effectually transferred by it, and the dispute about the name, is but a battle of words. The practical result is not indeed left to argument or inference. The words of the Constitution are explicit that the Constitution & laws of the U. S. shall be supreme over the Constitution and laws of the several States; supreme in their exposition and execution as well as in their authority. Without a supremacy in those respects it would be like a scabbard in the hands of a soldier without a sword in it. The imagination itself is startled at the idea of twenty four independent expounders of a rule that cannot exist, but in a meaning and operation, the same for all."

"Transferred" is also the word used by Chief Justice Jay in 1793, who wrote:

"Here we see the people acting as the sovereigns of the whole country; and in the language of sovereignty, establishing a Constitution by which it was their will, that the state governments should be bound, and to which the State Constitutions should be made to conform. Every State Constitution is a compact made by and between the citizens of a state to govern themeselves in a certain manner; and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves as to general objects, in a certain manner. By this great compact however, many prerogatives were transferred to the national Government, such as those of making war and peace, contracting alliances, coining money, etc."

It wasn;t until the slave holders saw their power to control the national government slipping away that the these positions were challenged.

Anyone who considers the whole record will not accept your skewed, prejudiced and factually incorrect position.

Your attempts to pervert perception of these events always puts me in mind of what Jefferson said:

"We are all Republicans--we are all Federalists. If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is free to combat it."

March 4, 1801

An appeal to reason will show your posts for the disinformation campaign that they are.

Walt

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.

This is the third time that I know of that you have misrepresented the language of the 10th amendment. It DOES NOT say the "States and their people." It says the states OR the people.

Specifically: "The powers not delegated to the United States by the Constitution, NOR PROHIBITED BY IT TO THE STATES, are reserved to the States respectively, or to the people."

From the moderated ACW newsgroup:

"This does not secure a right of secession. Rather, it precludes it, because it reaffirms that states cannot exercise powers prohibited to them.

Secession amounts to asserting the right to exercise prohibited powers. Therefore, the concept for which the word "secession" stands is clearly forbidden, even though the word itself doesn't appear in the document. How can a state appeal to the Tenth Amendment for support for the notion of legal secession, when that very amendment asserts that it does not give to the states any powers that they are denied elsewhere?

Finally, let me turn briefly to the "Jeffersonian" notion that the Constitution is a compact. If so, who are the parties to the compact? That is not precisely clear. The Preamble suggests that the Constitution is theoretically a compact among the people. The people, however, did not ratify it (but neither did the states, considered as, the term ordinarily meant at the time, "the state governments"). Nevertheless, ratification was by special conventions consisting of delegates chosen by the people of each state severally, and that provides a basis for arguing that the Constitution was a compact among the states. But whether the people were the parties to the compact, or the states were the parties to the compact, was there anything inherent in the nature of a compact to suggest that a party to it was entitled to disregard any of its provisions, or all of its provisions, as it might choose?

And one thing is certainly clear. Whether the people are the parties to the compact, or the states are the parties to the compact, the federal government was not a party to the compact. Therefore, if the federal government can violate the compact, it cannot do so as a party to the compact (because it was not a party). Thus, the argument that a violation of a compact by one party relieves all the other parties to it of their obligations under the compact simply does not apply if the violator is the federal government.

If it be the states are the party to the compact, and if a state is the violator of the compact, what are the implications for other states that have not violated the compact? The Constitution, if a compact involving the states, was not a bilateral agreement. It was a multilateral agreement. Suppose that we decided that Massachusetts had, in some sense, violated the compact by refusing to return a fugitive slave to Virginia. Even if that relieved Virginia of its compact obligation to Massachusetts, did it relieve it of its compact obligation to New York -- or Delaware, or California? The superficial attraction of the "compact" argument disappears when we consider, first, that it is not a principle anywhere enunciated in the Constitution (nowhere does it say that any violation of the Constitution by any of the parties to it, whomever they might be, renders the whole Constitution unenforceable), and second, that it would be extremely difficult to apply in a Union of thirty-three states rather than two."

The record, and common sense shows your argument to be fatally weak. And your habit of continually misrepresenting the languuage of the 10th amendment takes you off the field as a credible player in these discussions.

Walt