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
That's because the Constitution does not delegate any powers to the States. It does codify those powers that the States, by ratifying, agreed to cease to exercise. All sovereignty was in the hands of the people of the States to grant or withhold. That's why the Constitution had to be ratified by conventions of the people “for those States so ratifying the same.”
Respectfully,
D J White
Justice Stevens, joined by Justices Breyer, Ginsberg, and Souter, and with Justice Kennedy in a separate concurrance, makes it perfectly clear that the states retain the rights they enjoyed prior to ratification - UNLESS that right was delegated to the newly created federal government:
The "plan of the convention" as illuminated by the historical materials, our opinions, and the text of the Tenth Amendment, draws a basic distinction between the powers of the newly created Federal Government and the powers retained by the pre-existing sovereign States. As Chief Justice Marshall explained, "it was neither necessary nor proper to define the powers retained by the States. These powers proceed, not from the people of America, but from the people of the several States; and remain, after the adoption of the constitution, what they were before, except so far as they may be abridged by that instrument." Sturges v. Crowninshield, 4 Wheat. 122, 193 (1819).
This classic statement by the Chief Justice endorsed Hamilton's reasoning in The Federalist No. 32 that the plan of the Constitutional Convention did not contemplate "[a]n entire consolidation of the States into one complete national sovereignty," but only a partial consolidation in which "the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States." The Federalist No. 32, at 198. The text of the Tenth Amendment unambiguously confirms this principle:
"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."
As we have frequently noted, "[t]he States unquestionably do retain a significant measure of sovereign authority. They do so, however, only to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal Government." Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 549 (1985)
U.S. Term Limits, Inc. v. Thornton (93-1456), 514 U.S. 779 (1995).
Justice Thomas, joined by Chief Justice Rehnquist, and Justices O'Conner and Scalia, has this opinion of Amendment X,
When they adopted the Federal Constitution, of course, the people of each State surrendered some of their authority to the United States (and hence to entities accountable to the people of other States as well as to themselves). They affirmatively deprived their States of certain powers, see, e.g., Art. I, §10, and they affirmatively conferred certain powers upon the Federal Government, see, e.g., Art. I, §8. Because the people of the several States are the only true source of power, however, the Federal Government enjoys no authority beyond what the Constitution confers: the Federal Government's powers are limited and enumerated. In the words of Justice Black, "[t]he United States is entirely a creature of the Constitution. Its power and authority have no other source." Reid v. Covert, 354 U.S. 1, 5-6 (1957) (plurality opinion) (footnote omitted).
In each State, the remainder of the people's powers-- "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States," Amdt.10--are either delegated to the state government or retained by the people. The Federal Constitution does not specify which of these two possibilities obtains; it is up to the various state constitutions to declare which powers the people of each State have delegated to their state government. As far as the Federal Constitution is concerned, then, the States can exercise all powers that the Constitution does not withhold from them. The Federal Government and the States thus face different default rules: where the Constitution is silent about the exercise of a particular power--that is, where the Constitution does not speak either expressly or by necessary implication--the Federal Government lacks that power and the States enjoy it.
All the justices agree that the states possess the powers not delegated to the federal government, and they all agree that the federal governments powers are limited and enumerated. So what's the difference of opinion here?
The state's powers (reserved and not enumerated). The majority believe that only the powers that the states originally possessed were reserved. The minority believe that all powers not given to the federal government remain in the hands of the states, irregardless of their pre-existance.
So regarding secession, unless the federal government was granted the power of secession, the power was never transferred. It's certainly not a delegated power. So that begs the question, did the power to secede from a government ever exist for the states to exercise? Considering that the states had just fought a war to secure that right, and then peacefully exercised that right when they seceded from the Articles of Confederation, there cannot be any doubt.
I'd skip relying on opinions from newsgroups, moderated or not. The opinion of the poster is contrary to that of Chief Justice Marshall, Chief Justice Rehnquist, and others.
It also says “reserved” – and rights or powers may only be “reserved” by a party to a compact. And, as Mr. Jefferson and Mr. Madison (and the ratification documents of the States, and Article VII itself) make abundantly clear, that means the people of the States.
From the moderated ACW newsgroup...
What, no ‘street people’ or Democratic Party pollsters? You're ignoring a major source of support...
;>)
Secession amounts to asserting the right to exercise prohibited powers...
More ‘circular reasoning:’ secession is prohibited because you say secession is prohibited. (You almost-unlimited-government-power types really seem to depend on it! ;>) Feel free to prove me wrong: what clause of the United States Constitution specifically prohibits secession? Hmm?
The record, and common sense shows your argument to be fatally weak.
Where, exactly, was that constitutional clause prohibiting secession? ;>)
By the way, perhaps you should contact Harvard Professor of History William E. Gienapp, who recently observed that “the proponents of secession had a strong constitutional argument, probably a stronger argument than the nationalists advanced.” Maybe if you ‘turn him on’ to your whole ‘newsgroup’ thing, he’ll revise his professional opinion...
;>)
And your habit of continually misrepresenting the languuage of the 10th amendment takes you off the field as a credible player in these discussions.
Does this mean you still won’t consider the ratification documents of the States? Or Mr. Jefferson’s and Mr. Madison’s Resolutions? Or The Federalist Papers? And that you won’t even bother to locate the term “reserved” in a legal dictionary?
Does your mother know where you are?
;>)