While you are at it, you might check out the provisions of the preceding Articles of Confederation that they could only be amended by unanimous vote of the states, that the constitutional convention was called specifically to AMEND the Articles not to write a new constitution AND that the proposed document ignored the requirement of unanimity and proclaimed itself to be in effect, illegally, upon ratification by 9 of the 13 states.
If you view secession as illegal, what do you call the bloodless coup that led to this constitution.
Finally, did we not secede from the British Empire??? A good thing we did, but would you call that illegal? The British might well have hanged George Washington and others if they had won just as they hanged Wolfe Tone for running a revolution in Ireland in the late 1790s. Is victory the difference between being a demigod and beuing hanged as a traitor?
By the way, I am a Yankee born in Connecticut and lived there for all but the last two years when I have been in Illinois.
For one thing, as you indicate, by any reading of the 10th amendment where the states retain a right to rend the Union, the people retain a right to maintain it.
That is what they have done.
Secondly, the supremacy clause is a bar to unilateral state secession.
If a state could unilaterally withdraw from the Union, then supremacy would rest with each state, respectively - not with the Constitution and the laws made pursuant to it. As the Constitution expressly declares the Constitution to be the Supreme Law of the land, any act that denies this supremacy (e.g., unilateral withdrawal) must be unconstitutional.
n fact, the much invoked 10th amendment is a sure guarantor of the pemanence of the Union. This is because the people retain the right to maintain the Union in perpetuity. The states may not leave the Union because that thwarts the will of the sovereigns of the United States--the people of the United States.
A fair reading of the Constitution will not provide any basis for legal secession under our system.
Consider the words of the Constitution:
Article One, Section Eight, "Powers of Congress". Congress is charged in Para. 1 to provide for the common defense and general welfare, and in Para. 18 given all powers necessary to carrying the foregoing powers into execution. Having 11 states duck out definitely compromises the general welfare of the United States, you'll have to agree.
Don't buy that? Jefferson Davis did. This is exactly the rational he used to impose conscription on the states of the CSA. The national government has the power to coerce the states. Jiminy Cricket, Davis might well have been reading straight from Cohens v. Virginia.
The Constitution also promises that each state shall be guaranteed a republican form of government. Sort of hard to do if a state withdraws, isn't it?
The Constitution also promises in Article Four Section One, Para. 1 that "the Citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." Sort of hard to do if a state may withdraw, isn't it?
No one is suggesting that the states may not break away in the face of intolerable abuse of the powers transferred to the federal government. But I challenge anyone to find that intolerable abuse in the record prior to 1860.
Let's consider the words of James Madison:
"The doctrine laid down by the law of Nations in the case of treaties is that a breach of any one article by any of the parties, frees the other parties from their engagements. In the case of a union of people under one Constitution, the nature of the pact had always been understood to exclude such an interpretation." (Remarks to the Constitutional Convention, July 23, 1787).
In 1830 James Madison wrote:
"What was to be done in the event of controversies, which could not fail to occur, concerning the partition line between the powers belonging to the Federal and to the State governments? That some provision ought to be made, was as obvious, and as essential as the task itself was difficult and delicate...The provision immediately and ordinarily relied on is manifestly the Supreme Court of the United States, clothed as it is with a jurisdiction "in controversies to which the United States shall be a party," the court itself being so constituted as to render it independent and impartial in its decisions;"
James Madison The forging of American Federalism
Edited by Saul Padover
Harper Torchbooks, 1953 Page 196
In fact, Virginia and Virginians were early exponents of a strong Union.
"The [constitutional] convention was slow to tackle the problem of an army, defense, and internal police. The Virginia Plan said nothing about a standing army, but it did say that the national government could 'call forth the force of the union against any member of the Union failing to fulfill its duty under the articles thereof.'
--"Decision in Philadelphia" by Collier and Collier.
Let's quote Lincoln:
"And this issue embraces more than the fact of these United States. It presents to the whole family of man, the question, whether a constitutional republic, or a democracy--a government of the people, by the same people--can or cannot, maintain its territorial integtrity against its own domestic foes. It presents the question, whether discontented individuals, too few in numbers to control administration, accrding to organic law, in any case, can always, upon the pretenses made in this case, or on any other pretenses, or arbitrarily, without any pretense, break up their government, and thus practically put an end to free government upon the earth. It forces us to ask: "Is there in all republics, this inherent, and fatal weakness?"
A. Lincoln, 7/4/61 Lincoln was the champion of the Union brought forth by the founding fathers. More Lincoln:
"This is essentially a people's contest. On the side of the Union, it is a struggle for maintaining in the world, that form, and substance of government, whose leading object is, to elevate the condition of men -- to lift artificial weights from all shoulders -- to clear the paths of laudable pursuit for all -- to afford all, an unfettered start, and a fair chance, in the race of life. Yielding to partial, and temporary departures, from necessity, this is the leading object of the government for whose existance we contend."
A. Lincoln 7/4/61
There is simply no right of legal secession under US law, and the secessionists well knew it. That is why they didn't try to go before the courts and chose violence instead.
But the laws made in pursuance of the Constittution are also the supreme law of the land.Walt The destruction of federalism. Lincoln shattered the old Union, the indictment runs, because he denied the constitutional right of the Southern states to secede. But there never was such a right.
Many have insisted that “there never was such a right” – but no one has yet identified a clear prohibition of secession within the Constitution.
There are plenty.
The Supremacy clause is a sure bar to secession. So is the 10th amendment.
If a state could unilaterally withdraw from the Union, then supremacy would rest with each state, respectively - not with the Constitution and the laws made pursuant to it. As the Constitution expressly declares the Constitution to be the Supreme Law of the land, any act that denies this supremacy (e.g., unilateral withdrawal) must be unconstitutional.
n fact, the much invoked 10th amendment is a sure guarantor of the pemanence of the Union. This is because the people retain the right to maintain the Union in perpetuity. The states may not leave the Union because that thwarts the will of the sovereigns of the United States--the people of the United States.
A fair reading of the Constitution will not provide any basis for legal secession under our system.
Consider the words of the Constitution:
Article One, Section Eight, "Powers of Congress". Congress is charged in Para. 1 to provide for the common defense and general welfare, and in Para. 18 given all powers necessary to carrying the foregoing powers into execution. Having 11 states duck out definitely compromises the general welfare of the United States, you'll have to agree.
Don't buy that? Jefferson Davis did. This is exactly the rational he used to impose conscription on the states of the CSA. The national government has the power to coerce the states. Jiminy Cricket, Davis might well have been reading straight from Cohens v. Virginia.
The Constitution also promises that each state shall be guaranteed a republican form of government. Sort of hard to do if a state withdraws, isn't it?
The Constitution also promises in Article Four Section One, Para. 1 that "the Citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." Sort of hard to do if a state may withdraw, isn't it?
No one is suggesting that the states may not break away in the face of intolerable abuse of the powers transferred to the federal government. But I challenge anyone to find that intolerable abuse in the record prior to 1860.
Let's consider the words of James Madison:
"The doctrine laid down by the law of Nations in the case of treaties is that a breach of any one article by any of the parties, frees the other parties from their engagements. In the case of a union of people under one Constitution, the nature of the pact had always been understood to exclude such an interpretation." (Remarks to the Constitutional Convention, July 23, 1787).
In 1830 James Madison wrote:
"What was to be done in the event of controversies, which could not fail to occur, concerning the partition line between the powers belonging to the Federal and to the State governments? That some provision ought to be made, was as obvious, and as essential as the task itself was difficult and delicate...The provision immediately and ordinarily relied on is manifestly the Supreme Court of the United States, clothed as it is with a jurisdiction "in controversies to which the United States shall be a party," the court itself being so constituted as to render it independent and impartial in its decisions;"
James Madison The forging of American Federalism
Edited by Saul Padover
Harper Torchbooks, 1953 Page 196
In fact, Virginia and Virginians were early exponents of a strong Union.
"The [constitutional] convention was slow to tackle the problem of an army, defense, and internal police. The Virginia Plan said nothing about a standing army, but it did say that the national government could 'call forth the force of the union against any member of the Union failing to fulfill its duty under the articles thereof.'
--"Decision in Philadelphia" by Collier and Collier.
Let's quote Lincoln:
"And this issue embraces more than the fact of these United States. It presents to the whole family of man, the question, whether a constitutional republic, or a democracy--a government of the people, by the same people--can or cannot, maintain its territorial integtrity against its own domestic foes. It presents the question, whether discontented individuals, too few in numbers to control administration, accrding to organic law, in any case, can always, upon the pretenses made in this case, or on any other pretenses, or arbitrarily, without any pretense, break up their government, and thus practically put an end to free government upon the earth. It forces us to ask: "Is there in all republics, this inherent, and fatal weakness?"
A. Lincoln, 7/4/61
Lincoln was the champion of the Union brought forth by the founding fathers.
More Lincoln:
"This is essentially a people's contest. On the side of the Union, it is a struggle for maintaining in the world, that form, and substance of government, whose leading object is, to elevate the condition of men -- to lift artificial weights from all shoulders -- to clear the paths of laudable pursuit for all -- to afford all, an unfettered start, and a fair chance, in the race of life. Yielding to partial, and temporary departures, from necessity, this is the leading object of the government for whose existance we contend."
A. Lincoln 7/4/61
There is simply no right of legal secession under US law, and the secessionists well knew it. That is why they didn't try to go before the courts and chose violence instead.
Part of WIJG's campaign of half truths is his asking for prohibitions against secession -in- the Constitution. As we've seen, there are many. But the laws made in pursuance of the Constittution are also the supreme law of the land.
According to the Militia Act of May 2, 1792, as amended Feb 28, 1795, Sec. 2:
"And it be further enacted, That whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed. And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislatures of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session."
You'll note it says nothing about a state having passed an ordnance of secession to be a bar to federal action.
So Lincoln had the law plainly on his side when the war began.
Lincoln's other 1861 actions were also approved retroactively by the Supreme Court and the Congress. From a newsgroup:
"However, in 1862, the court heard on appeal from the United States District Court for the District of Massachusetts a collection of suits, collectively called the "Prize Cases" [67 U.S. (2 Black) 635]. The technically turned on whether the US had the right to declare a blacked of the ports of the states in rebellion, and, if so, who had the authority to authorize the blockade, the president or Congress.
President Lincoln issued a declaration of a blockade at the end of April, 1861. Congress retroactively approved of his actions when they met in July. The owners of the ships captured by US Navy ships and claimed as prizes of war, argued that a rebellion was not a war and therefore the ships were not prizes. Having good attorneys :>), they also argued that, even of a rebellion *was* a war, under the US Constitution, only Congress could authorize the blockade, so ships captured before July should be returned.
The US attorney for the District of Massachusetts argued the case for the United States. You have probably read one of his books: _Two Years Before the Mast_. Richard Henry Dana, Jr. got his start as a lawyer because seamen came to him after reading or hearing about that perennial best seller. He had become a Republican and was appointed by President Lincoln as US Attorney.
This was one of the two important lawsuits that Dana was involved in: the other was the treason trial of Jefferson Davis. Dana was appointed as a sort of special prosecutor by Andrew Johnson to try Davis. Because treason is such a hard crime to prove under the Constitution, Dana urged that Davis not be tried.
In the Prize Cases, Dana was spectacularly successful. The Court ruled unanimously that putting down a rebellion was a legitimate function of government (Chief Justice Taney supported this). To the second question, about who could authorize the resistance to the rebellion, the court split 5-4 in favor of the president. The minority, including Taney, argued unsuccessfully that only Congress had the power.
....the official syllabus to the decision says:
"A state of actual war may exist without any formal declaration of it by either party, and this is true of both a civil and a foreign war.
"A civil war exists, and may be prosecuted on the same footing as if those opposing the Government were foreign invaders, whenever the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the Courts cannot be kept open.
"The present civil war between the United States and the so-called Confederate States has such character and magnitude as to give the United States the same rights and powers which they might exercise in the case of a national or foreign war..."
Everything LIncoln did was legal. Everything. Consider Lincoln's words concerning habeus Corpus: I could not take the office without taking the oath. Nor was it my view that I might take an oath to get power, and break the oath in using the power. I understood too, that in ordinary civil administration this oath even forbade me to practically indulge my primary abstract judgment on the moral question of slavery. I have publically declared this many times, and in many ways. And I aver that, to this day, I have done no official act in mere deference to my abstract judgment and feeling on slavery. I did understand however that my oath to preserve the constitution to the best of my ability, imposed upon me the duty of preserving by every indispensible means, that government--that nation--of which that constitution was the organic law. Was it possible to lose the nation, and preserve the constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensible to to the preservation of the of the Constitution, through the preservation of the nation. Right or wrong, I assumed this ground, and now avow it..."
7/4/61
People who love the United States will agree with Lincoln's words.
Walt