Posted on 10/10/2006 5:08:28 AM PDT by Colonel Kangaroo
I don't recall saying that, but I have said that I believe secession is legal if done within the bounds of the Constitution. That is, with the consent of a majority of all the parties impacted.
I don't think the New York or Virginia delegates would have ratified the Constitution under those circumstances, and the Union as we know it would not have come to be.
We all know how Madison felt on conditional ratification. He believed it was not ratification at all. Either the Constitution was ratified as is, or it was not. No ifs or buts. But let's look at that ratification document in more detail. There was this understanding: "That standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power." Well that didn't happen, a standing army was specifically permitted under the Constitution and was maintained from the very beginning. The document also contained this clause: "That the Prohibition contained in the said Constitution against en post facto Laws, extends only to Laws concerning Crimes." Well that didn't happen either, the prohibition against ex post facto laws applies to all laws. So does that mean that New York didn't really ratify the Constitution? Not at all. Because even with all the qualifiers the document contained the phrase, "We the said Delegates, in the Name and in the behalf of the People of the State of New York Do by these presents Assent to and Ratify the said Constitution." They assented to the Constitution as written, and that document trumps all other laws, constitutions and, yes, ratification documents. What they thought the Constitution meant doesn't matter. And if they operated under mistaken impressions that still doesn't release them from their obligations and restrictions under the Constitution.
Forgot about this? Article V: "...no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."
What are you, one of the old Radical Republicans?
Fort Sumpter was on federal land. They were asked to leave? Since when is the action of being asked for something accompanied by a cannon barrage?
Excuse me, could you pass the salt and pepper? Oh, and by the way....Bang, Bang, Bang.
Not at all. But since you southron supporters keep dredging up that old claim that if a state secedes then it isn't bound by the Constitution, then wouldn't that also stand to reason that a state that was expelled would not be entitled to any representation? In the Senate or anywhere else?
check u.s. v. texas (1869). you're wrong. you don't have a constitutional right to secede. of course, that decision came AFTER the war.
the union held jefferson davis for several years after the war but never tried him for treason, ultimately releasing him without charge. why? because every constitutional expert they consulted told the feds they'd lose the case.
it's all kind of moot because whether one has a right to secede was really an issue decided at gunpoint.
It wasn't a condition. It was a statement of how they understood the Constitution. The New York ratification convention took out the words "on condition."
WEDNESDAY, July 23, 1788. — Mr. JONES moved, that the words on condition, in the form of the ratification, should be obliterated, and that the words in full confidence should be substituted — which was carried.
What they thought the Constitution meant doesn't matter.
Here's what Madison said about Virginia's "understanding" of the Constitution in his Virginia Report of 1799.
To place this resolution in its just light, it will be necessary to recur to the act of ratification by Virginia, which stands in the ensuing form:
We, the delegates of the people of Virginia, duly elected in pursuance of a recommendation from the General Assembly, and now met in convention, having fully and freely investigated and discussed the proceedings of the federal convention, and being prepared as well as the most mature deliberation hath enabled us to decide thereon, do, in the name and in behalf of the people of Virginia, declare and make known, that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them, whensoever the same shall be perverted to their injury or oppression; and that every power not granted thereby, remains with them, and at their will. That, therefore, no right of any denomination can be cancelled, abridged, restrained, or modified, by the Congress, by the Senate, or House of Representatives, acting in any capacity, by the President, or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes; and that, among other essential rights, the liberty of conscience and of the press, cannot be cancelled, abridged, restrained, or modified, by any authority of the United States.Here is an express and solemn declaration by the convention of the state, that they ratified the Constitution in the sense, that no right of any denomination can be cancelled, abridged, restrained, or modified by the government of the United States or any part of it; except in those instances in which power is given by the Constitution; and in the sense particularly, "that among other essential rights, the liberty of conscience and freedom of the press cannot be cancelled, abridged, restrained, or modified, by any authority of the United States."
Words could not well express, in a fuller or more forcible manner, the understanding of the convention, that the liberty of conscience and the freedom of the press, were equally and completely exempted from all authority whatever of the United States.
I believe that you are referring to Texas v White, the 1869 decision where the Supreme Court ruled that the Texas acts of secession were unconstitutional. But even in that decision, Chief Justice Chase noted that the "...union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States." It was the unilateral aspect of the acts of secession that the court believed violated the Constitution, not necessarily secession itself.
the union held jefferson davis for several years after the war but never tried him for treason, ultimately releasing him without charge. why? because every constitutional expert they consulted told the feds they'd lose the case.
Again you are not quite correct. True, Davis never went to trial. But he was charged with treason and sundry other crimes. And far from "every constitutional expert they consulted told the feds they'd lose the case," Davis never went to trial because Chief Justice Chase said that the passage of the 14th Amendment meant that additional trial and punishment would violate his 5th Amendment protections against double jeopardy.
it's all kind of moot because whether one has a right to secede was really an issue decided at gunpoint.
That was the choice that the south made. And they paid quite a price for their actions.
you're quibbling. of course, if the other states consented, they could secede. that's not what they did.
as far as davis, you're splitting hairs again. charging someone with treason is easy, trying the case and winning isn't. the u.s. didn't do it because they thought there was a significant chance they would lose.
and as far as choices go, the south sacrificed the concept of states' rights on the altar of slavery, a morally indefensible institution. good going rebs.
No, I'm not quibbling. The court made it clear that states may secede, if it was done with the consent of all the parties involved. And you're right, that's not what the southern states did. They didn't secede, they rebelled.
as far as davis, you're splitting hairs again. charging someone with treason is easy, trying the case and winning isn't. the u.s. didn't do it because they thought there was a significant chance they would lose.
Again, no. You're the one that said Davis was never charged, I just pointed out that you're wrong. You said that a multitude of Constitutional scholars said he couldn't be convicted, and didn't offer any names. The long and short of it is that Davis was, in my opinion, guilty of treason and he should have been tried. But on the same hand I understand the logic behind the Chief Justice's arguements and agree that the time for trial was before the ratification of the 14th Amendment.
and as far as choices go, the south sacrificed the concept of states' rights on the altar of slavery, a morally indefensible institution. good going rebs.
I'm a strong believer in state's rights, and the fact that the South chose slavery as the basis for their arguement means nothing to me. But what I disagree with was the manner in which they tried to achieve their aims. Rebellion was the wrong way to do it, and the fact that they've spent the last 140 years whining about losing does them little credit.
since the 13 states had LEFT the union to form a new nation, it would have been ODD had the states of the CSA continued to have representation in the US Congress. (It would be no different than CANADA or Mexico having representation in the US Congress.)
otoh, once OUT of the union they were a DIFFERENT nation & thus it is either SILLY or DISHONEST that the remaining states of the old union continued to say that the states comprising the CSA had NOT actually withdrawn.
DAMNyankees (& unionists of other sorts) CANNOT have it both ways! the CSA was either FREE or NOT FREE. there is NO middle ground between those two states of being.
free dixie,sw
Wrong. The justices (3 of the 4) hold that a state may UNILATERALLY secede. No justice wrote that this was limited to the state ante ratification (this decision was in 1795, well after ratification of the Constitution). Justice Patterson writes that 'several questions have been agitated; some of which, involving constitutional points.' The issue before the court was a jurisdictional dispute, in which it was claimed that Congress, the Appeals Court etc. lacked jurisdiction to hear the case, and that the laws of the state of New Hampshire should hold.
The jurisdiction of the Commissioners of Appeals has been questioned.It's not a difficult case. The state agreed to be a member of the union, and while remaining a member must abide by the laws - the federal courts DID have jurisdiction. If the state refuses to abide by that agreement, she should withdraw herself from the union. The justices acknowledge the states have the right to leave unilaterally, a power retained by the Articles: 'Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States', and by the Constitution: '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.'The jurisdiction of the Court of Appeals has been questioned.
These jurisdictions turning on the competency of Congress, it has been questioned, whether that body had authority to institute such tribunals.
And, lastly, the jurisdiction of the District Court of New Hampshire has been questioned. In every step we take, the point of jurisdiction meets us.
Justice Patterson, Penhallow et al v. Doane's Administrators, 3 Dall. 54, 79-80 (1795), [emphasis mine]
Wrong again. They were specifically talking about the Articles of Confederation, as my quote made clear. The decision was made in 1795, but the acts in question occured before 1780. Long before the Constitution was ratified. Finally, Penhallow was basically a property case. Secession was not an issue before the court, therefore even if 3 of 4 justices held that a state may UNILATERALLY secede such statements were not binding. Or do I need to take you on my knee and explain, yet again, what obiter dictum means?
Francis Lieber. John J. Clifford. Richard Henry Dana.
Wrong - .
Finally, Penhallow was basically a property case.
Wrong. Patterson made certain that brain dead morons would understand it was one of jurisdiction. At the bar was he issue of jurisdiction - whether or not each of the adjudicating bodies had jurisdiction to hear the case. And to that he responded that as long as the state remained in the union they did.
Secession was not an issue before the court, therefore even if 3 of 4 justices held that a state may UNILATERALLY secede such statements were not binding.
My God you're obtuse. If the state had withdrawn herself the issue would be moot.
Or do I need to take you on my knee and explain, yet again, what obiter dictum means?
One justice writing that unilateral secession was legal might be considered dictum, but three holding that unilateral secession was legal is ample evidence that it was foundational, and not obiter dicta.
Regarding you perverted wishes to take someone across your knee, no thanks.
Nice try.
A state by its own action can rescind its ratification of the Constitution and secede. There is nothing in the Constitution that prevents that. The seceded state is then no longer a state of the Union.
On the other hand, if other states band together and kick out a state, then that single action done without the consent of the kicked out state deprives the state of representation.
I can see it now.
SCOTUS Justice: "Did your action deprive Kansas of representation in the Senate?"
Answer: "Yes, but non-sec said we could do it. After all, he’s the self-proclaimed head of the Yankee posters, and he wants to be King of Kansas."
SCOTUS Justice: "If it will get non-seq out the US, we'll agree to deprive Kansas of its representation."
Sheer idiocy. Richard Henry Dana doubted the ability to obtain a guilty verdict from a Virginia jury. He never said that Davis shouldn't be charged with treason. And Al Benson's column notwithstanding I haven't seen any sources for quotes from Clifford or Lieber.
Sorry, but I'm quite right on that.
Patterson made certain that brain dead morons would understand it was one of jurisdiction
Well I can't speak for what brain dead morons understand, I'll defer to you in that area. But a reading of majority opinion make it clear that the original issue was never one of secession since nobody had seceded.
If the state had withdrawn herself the issue would be moot.
If a state had withdrawn then it might well have been an issue before the court. But a state did not so secession wasn't a matter for the court to rule on.
One justice writing that unilateral secession was legal might be considered dictum, but three holding that unilateral secession was legal is ample evidence that it was foundational, and not obiter dicta.
Wrong again. Any comment made in passing in a judicial ruling is made in dicutm. As you should know by now courts cannot rule on matters that are not before them for decision. Nobody had seceded so the court could not rule on the legality.
The problem with that bit of particularly flawed logic is that 37 of the 50 states were not created merely by rafifying the Constitution. They were admitted only with the permission of the other states and by implication that is the way that they can leave. Or so the Supreme Court found in the Texas v White case. And since all states are considered equal then the original 13 are bound by the same restrictions placed on the 37 created since.
On the other hand, if other states band together and kick out a state, then that single action done without the consent of the kicked out state deprives the state of representation.
Nonsense. Nothing in the Constitution prevents it.
Answer: "Yes, but non-sec said we could do it. After all, he’s the self-proclaimed head of the Yankee posters, and he wants to be King of Kansas."
Well, we are expected to accept that things are constitutional and unconstitutional merely because you say they are. Why not me?
"Nonsense. Nothing in the Constitution prevents it. "
Yeah, well Grant and Sherman had something to say about that.
SORRY, but once again, Mr Minister, your post is PROOF that you're NOTHING but a PROPAGANDIST for the DAMNyankee,REVISIOPNIST academic/financial/social/LEFTIST elites out of the northeast. don't you get tired of being their shill & APOLOGIST????
free dixie,sw
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