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.
Then you must also give credence to Chief Justice Marshall.
"The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers, to insure, as far as human prudence could insure, their beneficial execution. This could not be done by confining their choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be approprate, and which were conducive to the end...to have prescribed the means by which the government, should, in all future times, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code...To have declared, that the best means shal not be used, but those alone, without which the power given would be nugatory...if we apply this principle of construction to any of the powers of the government, we shall find it so pernicious in its operation that we shall be compelled to discard it..."
From McCullough v. Maryland, quoted in "American Constittutional Law" A.T. Mason, et al. ed. 1983 p. 165
And:
"That the United States form, for many, and for most important purposes, a single nation, has not yet been denied. In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are one; and the government which is alone capable of controlling and managing their interests in all these respects, is the government of the Union. It is their government and in that character, they have no other. America has chosen to be, in many respects, and in many purposes, a nation; and for all these purposes, her government is complete; to all these objects it is competent. The people have declared that in the exercise of all powers given for these objects, it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory. The constitution and laws of a state, so far as they are repugnant to the constitution and laws of of the United States are absolutely void. These states are constituent parts of the United States; they are members of one great empire--for some purposes sovereign, for some purposes subordinate."
--Chief Justice John Marshall, writing the majority opinion, Cohens v. Virginia 1821
I don't see how you can quote justices now--and ignore justices from the past;.
I don't ever even quote Texas v. White on the basis that it post ACW. I don't think you should either.
Walt
Yes, to include providing for the common defense, and as Chief Justice Marshall has told us, Congress must judge for itself what measures to take when the common defense is threatened.
Think about this:
"If this doctrine had been established at an earlier day, the Union would have been dissolved in its infancy. The excise law in Pennsylvania, the embargo and non-intercourse law in the Eastern States, the carriage tax in Virginia, were all deemed unconstitutional, and were more unequal in their operation than any of the laws now complained of; but, fortunately, none of those states discovered that they had the right now claimed by South Carolina. The war into which we were forced, to support the dignity of the nation and the rights of our citizens, might have ended in defeat and disgrace, instead of victory and honor, if the states who supposed it a ruinous and unconstitutional measure had thought they possessed the right of nullifying the act by which it was declared, and denying supplies for its prosecution. Hardly and unequally as those measures bore upon several members of the Union, to the legislatures of none did this efficient and peaceable remedy, as it is called, suggest itself. The discovery of this important feature in our Constitution was reserved to the present day.
To the statesmen of South Carolina belongs the invention, and upon the citizens of that state will unfortunately fall the evils of reducing it to practice.
" --Andrew Jackson
In other words, if you try this nullification/secession crap, say hello to Uncle Billy!
Walt