The Tenth Amendment reserves to the states or to the people only "[t]he powers not delegated to the United States by the constitution" or the powers that are prohibited by the constitution to the states. The manifest intention of the southern politicians who were declaring their state's secession in order to protect slavery was to prevent the government of the United States from exercising in the southern portion of the United States the powers that are delegated to the United States by the Constitution. Do you really think that these fellas were planning to continue to allow the government of the United States to continue to exercise the powers delegated to it by the constitution within their states? That's not how I read those declarations! I think that they really meant it!
Furthermore, please consider the ratification of the Constitution. There was a pre-existing “government of the United States [formed under the terms of the Articles of Confederation] already governing in the” thirteen member States. “The purpose of the” States independently ratifying the new Constitution "was to kick the [previous] government of the United States “out of the” ratifying States, “and to prevent the [previous] government of the United States from continuing to perform its constitutional functions there.”
Our Founding Fathers were painfully conscious of the "legitimacy" issues presented by the facts you mention as well as by the fact that the Constitutional Convention had clearly exceeded the express authority of the Congress. They attempted to solve this legitimacy problem by referring the constitution back to the Congress so that the Congress could refer it to conventions in the states for ratification. But the problem that you mention would have continued to present an interesting issue if one or more of the states belonging to United States had not ratified the new constitution. Fortunately, that problem was avoided by unanimous ratification.
In contrast, the southern states totally disregarded the legitimacy issues presented by their declarations of "secession." They didn't refer their declarations to the Congress. They didn't attempt to litigate the questions raised by "secession." They just invented a theory and declared it legal. Resistance by the government of the United States was inevitable.
By the way, many of the States' ratification documents explicitly or implicitly reserved the right of secession - they "were not made in jest; they really meant what they said."
I don't remember anything like that. Which documents are you referring to?
True. Care to tell us where secession was “delegated” or “prohibited” by the Constitution?
The manifest intention of the southern politicians who were declaring their state's secession in order to protect slavery was to prevent the government of the United States from exercising in the southern portion of the United States the powers that are delegated to the United States by the Constitution.
Actually, their “manifest intention” was to withdraw from the union. Once a State had seceded, it was no longer bound by the terms of the Constitution, or the laws of the United States.
Do you really think that these fellas were planning to continue to allow the government of the United States to continue to exercise the powers delegated to it by the constitution within their states?
Why on earth would they allow a foreign government to “exercise the powers delegated to it by” a foreign Constitution “within their [seceded] states?”
That's not how I read those declarations! I think that they really meant it!
Yes, they really meant it. In the words of Robert Augustus Toombs of Georgia, upon his resignation from the U.S. Senate:
“Sirs, the Constitution is a compact. It contains all our obligations and the duties of the federal government. I am content and have ever been content to sustain it... I say that the Constitution is the whole compact. All the obligations, all the chains that fetter the limbs of my people, are nominated in the bond, and they wisely excluded any conclusion against them, by declaring that ‘the powers not granted by the Constitution to the United States, or forbidden by it to the States, belonged to the States respectively or the people.’”
Once again we see a specific reference to the Tenth Amendment: barring a delegation of the power over secession to the federal government, or a prohibition of State secession, the Constitution itself guarantees that the States retain the right to withdraw from the union.
Our Founding Fathers were painfully conscious of the "legitimacy" issues presented by the facts you mention as well as by the fact that the Constitutional Convention had clearly exceeded the express authority of the Congress. They attempted to solve this legitimacy problem by referring the constitution back to the Congress so that the Congress could refer it to conventions in the states for ratification.
Actually, the Articles of Confederation specifically required that action:
Article XIII. ... nor shall any alteration at any time hereafter be made in any of [the Articles of Confederation]; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.
The Founders were merely complying with some of the requirements of the then-current 'constitution,' not 'attempting to solve a legitimacy problem'...
But the problem that you mention would have continued to present an interesting issue if one or more of the states belonging to United States had not ratified the new constitution. Fortunately, that problem was avoided by unanimous ratification.
The “problem was avoided” by happenstance, not by design. Article VII of the Constitution declares that the new compact will be established upon the ratification of the ninth State – which is a clear contradiction of the terms of Article XIII of the Articles of Confederation...
In contrast, the southern states totally disregarded the legitimacy issues presented by their declarations of "secession." They didn't refer their declarations to the Congress. They didn't attempt to litigate the questions raised by "secession." They just invented a theory and declared it legal.
Poppycock. The Constitution nowhere ‘delegates or prohibits’ secession – are you suggesting that the Constitution contains a clause requiring seceding States to “refer their declarations to...Congress?” To which article and section are you referring? And why on earth would they attempt to “litigate” something that is not prohibited? Must you “litigate the questions raised” every time you brush your teeth? Finally, the Southern States had no need to ‘invent a theory:’ several of the States specifically reserved the right of secession when they ratified the Constitution (seven decades prior to the war), Tucker’s Blackstone’s Commentaries documented the right (six decades before the war), and the right of secession was even taught to the cadets at the United States Military Academy at West Point (courtesy of U.S. Attorney Rawle’s text on constitutional law, nearly four decades before the war). If anyone has “invented a theory and declared it legal,” it is the 'union-at-any-cost' folks and their theory that the Constitution prohibits secession.
Resistance by the government of the United States was inevitable.
“Inevitable?” Only if the government chose to ignore the Constitution. (By the way – why didn't the government “attempt to litigate the questions raised by ‘secession?’" ;>)
I don't remember anything like that. Which documents are you referring to?
Allow me:
”WE the Delegates of the People of the State of New York...Do declare and make known...That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution...”
Ratification of the Constitution by the State of New York (1788)
"We the Delegates of the People of Virginia...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...”
Ratification of the Constitution by the State of Virginia (1788)
”We the Delegates of the People of the State of Rhode-Island, and Providence Plantations...do declare and make known...That the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness:- That the rights of the States respectively, to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same; and that those clauses in the said constitution which declare that Congress shall not have or exercise certain powers, do not imply, that Congress is entitled to any powers not given by the said constitution, but such clauses are to be construed as exceptions to certain specified powers, or as inserted merely for greater caution...”
Ratification of the Constitution by the State of Rhode Island (1790)
Several other States implicitly reserved the right of secession by including language in their ratification documents such as (in the words of the people of New Hampshire):
“That it be Explicitly declared that all Powers not expressly & particularly Delegated by the aforesaid Constitution are reserved to the several States to be, by them Exercised...”
And there's more where that came from. As a matter of fact, the Tenth Amendment was specifically based upon the language of the States’ ratification documents...
;>)