"Any people whatsoever have the right to abolish the existing government, and form a new one that suits them better. This is a most valuable, a most sacred right."
And the new Constitution, was it really destined to be "perpetual (which, by the way was repeated not twice, but 5 times in the AoC). And yet the word "perpetual" was never included in the new Constitution. Why? Do the words "a more perfect Union" mean perpetual? Why not just write "a more perfect, perpetual Union" instead if that was the intent?
Lincoln thought very highly of President Thomas Jefferson. Lincoln had certainly read the writing of Jefferson, and couldn't have missed the Kentucky Resolution of 1798, when Jefferson wrote in protest of the Alien and Sedition laws:
"[T]he several states composing the United States of America are not united on the principle of unlimited submission to their general government; but that, by compact, under the style and title of the Constitution of the United States, and of certain amendments thereto, they constituted a general government for general purposes, delegated to that government certain powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void and of no effect."
Jefferson also opined in his 1801 inaugural adress,
Since he can't refute Jefferson, Lincoln remains silent. Which is a habit of Lincoln. He also omits any reference to the Second Amendment ("the right of the people to keep and bear arms") in order to protect the security of a free State. A trip through the debates (and a very recent Court decision) makes it abundantly clear that the people of the states have the right to defend themselves, not only against criminal, but also against the tyranny of the federal government. Considering that the several States had just fought a war over a tyrannical Britain, one can hardly understand why Lincoln would be silent on this issue."If there be any among us who wish to dissolve the 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 free to combat it.".
And speaking of Lincoln's silence regarding the Constitution, not once does Lincoln mention the 9th and 10th Amendments - they justify the secession, and his omission (remember he was a lawyer) is most compelling. He could not refute them, so he must rely on bogus arguments instead. He argued that the secession of a state would destroy the government, so once the South seceded, what government sent an army to invade the South?
Not only does Lincoln ignore the Second, Ninth and Tenth Amendments, he completely reverses them - the several states have no rights that are not expressly stated in the Constitution And he also argues that he has the Constitutional authority to use military force against the seceding states. Guess again. The Constitutional Convention raised this very issue on 31 May 1787 when they debated adding this Congressional power, "to call forth the force of the union against any member of the union, failing to fulfil its duty under the articles thereof." Eliotts Debates records this motion as postponed, yet James Madison spoke against it (in his records), and gives a liitle more detail why it was postponed (and discarded):
"A Union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State, would look more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound."
Either way, the federal government did not have the power, and when the federal government attacked a state, the Union would be dissolved anyhow. Madison also wrote this,
"Let a standing army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger."
The states have the right to protect themselves against tyrannical federal government by force, and they also have the right to do so by the peaceful means of secession.
The best analysis of the 10th Amendment is given by Justice Thomas, with whom Chief Justice Rehnquist, Justice O'Connor, and Justice Scalia joined, dissenting, in U.S. Term Limits, Inc. v. Thorton, (1995). (footnotes ommitted)
And where the Constitution is silent, it raises no bar to action by the States or the people.
Our system of government rests on one overriding principle: all power stems from the consent of the people. To phrase the principle in this way, however, is to be imprecise about something important to the notion of "reserved" powers. The ultimate source of the Constitution's authority is the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole.
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 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.
These basic principles are enshrined in the Tenth Amendment, which declares that all powers neither delegated to the Federal Government nor prohibited to the States "are reserved to the States respectively, or to the people." With this careful last phrase, the Amendment avoids taking any position on the division of power between the state governments and the people of the States: it is up to the people of each State to determine which "reserved" powers their state government may exercise. But the Amendment does make clear that powers reside at the state level except where the Constitution removes them from that level. All powers that the Constitution neither delegates to the Federal Government nor prohibits to the States are controlled by the people of each State.
The principle necessary to answer this question is express on the Tenth Amendment's face: unless the Federal Constitution affirmatively prohibits an action by the States or the people, it raises no bar to such action.
The record clearly supports the right of secession. But continue if you will, to uphold as a saint, the President that killed 620,000 Americans over 1 dead horse.
There is not one word on secession in the Constitutional Convention. NOT ONE.
Since the Articles of Confederation maintained the Union was perpetual and the Constitution strove to create "a more perfect Union" and never changed the Articles stance on indivisibility, it is utterly illogical or deceitful to claim that the right to secede was there.
It is more a testimony to the piss-poor pitiful quality of confederate artillery than any sort of care being shown on the part of the rebels to control casualties. IMHO, of course.
But the important factor is that the confederates DID open fire first. The question is why? What was threatened? Even with the reinforcements and supplies could Sumter have threatened the survival of the confederacy? Could the 500 or so men in the fort launched an invasion of South Carolina? Would closing the third largest port in the south caused irreparable economic harm? Had the troops in Sumter issued any threat at all? The answer to all those is no. So why the rush to open fire if not because you wanted a war all along?
And where the Constitution is silent, it raises no bar to action by the States or the people.
Our system of government rests on one overriding principle: all power stems from the consent of the people. To phrase the principle in this way, however, is to be imprecise about something important to the notion of "reserved" powers. The ultimate source of the Constitution's authority is the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole.
Well, as this is a dissenting opinion, and not even a majority opinion, I guess we can suppose that the majority agreed with Chief Justice John Jay writing in 1793:
"Here we see the people acting as the sovereigns of the whole country; and in the language of sovereignty, establishing a Constitution by which it was their will, that the state governments should be bound, and to which the State Constitutions should be made to conform. Every State Constitution is a compact made by and between the citizens of a state to govern themeselves in a certain manner; and the Constitution of the United States is liekwise a compact made by the people of the United States to govern themselves as to general objects, in a certain manner. By this great compact however, many prerogatives were transferred to the national Government, such as those of making war and peace, contracting alliances, coining money, etc."
Back to the drawing board.
Walt