Perhaps. But until the decision is overturned, unilateral secession as practiced by the Southern states was and is illegal.
A decision that was later negated by the 14th Amendment to the Constitution.
So, to appeal to a Supreme Court decision, makes it legal AT THAT TIME, but it does NOTHING to tell us whether the Surpeme Court was RIGHT in its decision.
But they are not wrong merely because you say they are wrong.
“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 left to combat it.”
And where in that did Jefferson outline the means to go about seceding?
Fifteen years later, after the New England Federalists attempted to secede, Jefferson said, “If any state in the Union will declare that it prefers separation ... to a continuance in the union .... I have no hesitation in saying, ‘Let us separate.’”
A complete misquote, but even in that Jefferson is clearly stating that separation is a mutual decision. No one state has the power to merely walk out at a whim.
In Federalist Paper 39, James Madison, the father of the Constitution, cleared up what “the people” meant, saying the proposed Constitution would be subject to ratification by the people, “not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong.”
Madison also said, "...I do not consider the proceedings of Virginia in ’98-’99 as countenancing the doctrine that a state may at will secede from its Constitutional compact with the other States. A rightful secession requires the consent of the others, or an abuse of the compact, absolving the seceding party from the obligations imposed by it."
In a word, states were sovereign; the federal government was a creation, an agent, a servant of the states.
States are also equal. No state can unilateally take any action that impacts the interests and well-beling of another state. Even seceding.
RE: But until the decision is overturned, unilateral secession as practiced by the Southern states was and is illegal.
Not as simple as that.
I respect the decisions of the Supreme Court, but I will not cede ULTIMATE authority to it when it comes to the LEGALITY of everything.
Most of us today have been taught the idea that nullification, like secession, is unconstitutional; and further, that it is a discredited political doctrine.
The federal government is absolutely supreme, thus the states are subordinate entities that must obey federal edicts – this is the reigning dogma in American politics, and one of the ideas that the elites are laboring to teach to school children. If you ask for proof, the supporters of this dogma (generally federal officials and those who benefit from the favor of same - surprise, surprise) will usually throw a quote from Abe Lincoln at you and tell you that ideas like nullification and secession died at Appomattox, Virginia in 1865. Why? Well, because that’s the place where Lincoln and those who supported his authoritarian ideals finally wore down those who disagreed, and forced their surrender on the battlefield. Thus, nullification and secession are ‘discredited’ political doctrines largely for the same reason that your claim to your wallet can be ‘discredited’ by a mugger in an alley.
However, others of a less philosophically rigid sort understand that physical force cannot discredit an idea.
Nullification has a long and interesting history in American politics, and originates in the Virginia and Kentucky Resolutions of 1798. These resolutions, secretly authored by Thomas Jefferson and James Madison, asserted that states, as sovereign entities, could judge for themselves whether the federal government had overstepped its constitutional bounds, to the point of ignoring federal laws.
Virginia and Kentucky passed the resolutions in response to the federal Alien and Sedition Acts, which provided, in part, for the prosecution of anyone who criticized Congress or the President of the United States.
Other instances followed, most famously in 1833, when South Carolina nullified the federal Tariff of 1828, which it deemed to be unconstitutional because it was specifically a protective tariff, not a revenue tariff. This act of nullification created a conflict between South Carolina and President Andrew Jackson, and nearly led to war before a compromise tariff was adopted.
And lest it be assumed that nullification and state sovereignty were political doctrines unique to the Southern states, it should also be noted that there were times when the Northern states also asserted them (in particular, see the Hartford Convention of 1814 and the various “personal liberty laws” that Northerners enacted in defiance of federal fugitive slave laws).
So going back to your appeal to the Supreme Court as the final arbiter to what is constitutional ( Dredd Scott notwithstanding).
What about the federal courts? Aren’t they supposed to determine the constitutionality of a law or a given action?”
Over time, nationalists — thanks primarily to Chief Justice John Marshall’s decisions early in the country’s history — have been very successful at planting the idea in the American mindset that our federal courts are the final arbiters of any and all constitutional issues, but there is actually no constitutional justification for this notion.
In Federalist 81, Alexander Hamilton remarked that there is “not a syllable in the plan under consideration [the Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution.”
So, The role of the federal courts and the final determination of constitutional issues in dispute is, in my opinion, the thing we ought to ponder.
Article III empowers the United States Supreme Court with legitimate authority over all “cases in law and equity arising under this Constitution,” and Article VI states that the Constitution is the “supreme Law of the Land…any Thing in the Constitution or Laws of any State to the Contrary not with-standing.”
As a result, it follows that the Court should have authority to rule in situations where violations of some clear constitutional provision are alleged to have occurred. NO ARGUMENT HERE THUS FAR.
However, what if the question before the court is not how the Constitution applies to a given matter, but if the Constitution applies to it at all? Or what if a verdict of the court introduces some NEW doctrine, and thus somehow changes the fundamental relationship of the federal government to the states and individual Americans?
Don’t tell me that this has never happened in US history.
The Dredd Scott decision and the dubious reasoning of Justice Taney is exhibit A.
In this case, the question has undergone a radical change. We are no longer considering an overt – or, as Hamilton once put it, “evident” – violation of a constitutional provision or prohibition.
In this case, we are dealing with the question of what are the delegated powers of the federal government and what are the reserved powers of the states and the people, of whether the federal courts, by involving themselves in a given matter, are somehow changing the Constitution and the framework of our country by fiat. In other words, the notion of federal judicial supremacy creates a ‘separation of powers’ issue (in some instances) because it makes the states subservient to an arm of the federal government in the matter of their reserved rights and status.
Further, it turns the idea of delegated powers on its head by giving the federal government final authority in the matter of the scope of its own powers, thus giving it the ability to re-invent itself and evolve beyond its authorized scope.
Also, consider how the steady politicization of the federal courts has affected our society at large, given the steady expansion of judicial power ( heck, we are but one justice away from the Supreme Court practically inventing new laws out of thin air in the 21st century ).
This issue came to light in a particularly noteworthy way following the 2000 General Election. When the matter of recounting votes was thrown into the courts, suddenly the media was filled with stories of how “Judge so-and-so” votes, or who appointed him, and whether he was a Republican or Democrat; but, interestingly enough, what was not being discussed was the fact that we were openly admitting that our court systems have become politicized, and that Lady Justice was no longer blind but actually on the take.
The politicization of our courts is now all but openly admitted as such, and some politicians and special interest leaders take considerable pride in their efforts to tip the scales of justice in their agenda’s favor. Consider any typical Senate hearing on the appointment of a federal judge or Supreme Court justice. Senators parade before the television cameras asking candidates how they feel on various litmus test political issues. Judicial appointments come down, not to whether the judge understands the Constitution and has a history of upholding the law, but to whether he passes the political litmus test of the dominant party! Thus, our sacred liberties under the law have slowly been supplanted by the advancement of political agendas operating in the halls of justice. Due to the efforts of the nationalists, we have lost the concept of federalism and the separation of powers. Anything and everything is now subject to being read into the federal Constitution, and politics reigns supreme.
The Constitution never foresaw the development of political parties or the way partisan wrangling would play havoc with our system of government, particularly how it would corrupt the courts.
As such, nullification is an important means by which states can defend themselves against partisan abuses of federal power.
The Constitution is imperfect in this regard, and, I believe, should be updated to provide for Thomas Jefferson’s solution to the clash of federal versus state authority and constitutional ambiguities:
But the Chief Justice [Federalist John Marshall] says, ‘there must be an ultimate arbiter somewhere.’
True, there must, BUT WHO IS THE ULTIMATE ARBITER IF GOD DOES NOT SPEAK TO US THE WAY HE SPOKE TO MOSES? Does that prove it is either party?
I believe the ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress, or of two thirds of the States.
Let them decide to which they mean to give authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our constitution, to have provided this peaceable appeal, where that of other nations is at once to force.
The means by which secession was done in the 19th century that led to the civil war, I will grant, was belligerent. But the North was not without its fault as well.
However, unless shown to me convincingly, I still believe that SECESSION is a right every state is given as ORIGINALLY INTENDED.