I believe this is the clause to which you are referring:
“New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”
A few points:
1) What we see is “congressional approval required” for certain specific changes. If the Founders had wished, they could phrased the clause exactly as you did – “congressional approval [is] required for every change in a state's status.” They did not do so, probably because such a blanket authorization of congressional power would have caused some States to refuse to ratify.
2) Please note: “the Consent of the Legislatures of the States concerned” was required as well. The clause hardly describes the type of unlimited federal power implied by your statement.
3) Finally, please note the absence of any reference to secession. The Constitution would be established only upon the ‘formal withdrawal’ of nine States from the union formed under the Articles of Confederation – and the same convention that produced Article VII of the Constitution placed no limits on such withdrawal in Article IV.
Finally, an analogy: even though your approval is required before anyone may enter your home, allow me to suggest that such approval is hardly required before your guests may leave.
But that's OK because I never expected you to accept my argument anyway. Any more than I accept your arguement that the Constitution can forbid states from acting in any unilateral manner where the interests of other states might be affected, except for secession. That makes no sense at all.
I don’t believe I have ever made that argument, but let us consider it for a moment. Any State action apart from secession fails to change the State's “status” as one of the consensually united States. The State’s obligations remain those of a member of the union. When a State secedes, however, it is no longer a member of the union of States, and it is no longer bound by the terms of the compact uniting those States. In fact, it is a reasonable argument.
Which brings us back to my original point. I can no more prove to you that the Constitution forbids unilateral secession than you can prove to me that the Constitution allows it.
That may be true – but I, at least, do not have to base my argument upon vague implications. The Tenth Amendment says exactly what it says. And when I defend “the right of the people to keep and bear Arms,” for example, I will not have to contradict myself in the face of liberal arguments that the ‘general welfare’ clause ‘implies’ a government right to ban firearms ownership...
I am quite familiar with the Alien and Sedition Acts. And if the court never ruled on them it is because they were never brought before if. The court cannot issue rulings unless they do.
More to the point, apparently the court need not issue rulings unless it so desires. And the court at that time was composed entirely of the appointees of a single political party - the same party, naturally, that benefited from the unconstitutional legislation in question.
Are you suggesting that we should have an activist court, ruling on whatever strikes their fancy? It should issue advisory rulings on matters before they are voted on by congress? That would violate the separation of powers, wouldn't it?
Perhaps you should review my Post #231. The advocates of “an activist court” tend to support your side of the secession debate: given the lack of any prohibition of secession within the Constitution itself, they must perforce rely upon judicial ‘opinion’...
As for your second part, where in the Constitution does it give the states the right to determine what is constitutional? It gives the Supreme Court jurisdiction on matters arising under the Constitution, not the states.
Interesting choice of words, “under this Constitution,” don’t you agree? As for the States, they retained every power not granted or prohibited - and in the words of Mr. Justice Antonin Scalia:
”The Constitution of the United States nowhere says that the Supreme Court shall be the last word on what the Constitution means. Or that the Supreme Court shall have the authority to disregard statutes enacted by the congress of the United States on the ground that in its view they do not comport with the Constitution. It doesn't say that anywhere. We made it up.”
Perhaps you can take a few minutes and answer the questions posed by John Taylor in 1823:
“The word supreme is used twice in the constitution, once in reference to the superiority of the highest federal court over the inferior federal courts, and again in declaring ‘that the constitution, and laws made in pursuance thereof, shall be the supreme law of the land, and the judges in every state shall be bound thereby.’ Did it mean to create two supremacies, one in the court, and another in the constitution? Are they colateral, or is one superior to the other? Is the court supreme over the constitution, or the constitution supreme over the court? Are ‘the judges in every state’ to obey the articles of the union, or the construction of these articles by the supreme federal court?”
What say you?
;>)
What we see is “congressional approval required” for certain specific changes. If the Founders had wished, they could phrased the clause exactly as you did – “congressional approval [is] required for every change in a state's status.” They did not do so, probably because such a blanket authorization of congressional power would have caused some States to refuse to ratify.
Speaking for the Founders again? If the founding father's did not mean for congressional approval for every change then why did the go into such detail. If two states wished to combine and both of the legislatures agreed to it then why should congressional approval be needed? The obvious answer is that the interests of the other states could be affected and congressional approval was a way of safe-guarding those interests. And if the people of California decide to split into two states then why should that require congressional approval? For the same reason. And if a state decides that it wants to leave the Union then why shouldn't Congress be expected to approve in order to ensure that the interests of other states are not protected?
Please note: “the Consent of the Legislatures of the States concerned” was required as well. The clause hardly describes the type of unlimited federal power implied by your statement.
I'm not advocating unlimited federal power. Once a state becomes a state Congress cannot unilaterally take any actions that affect its status. Why should the legislatures be allowed to take unilateral action that affects its status? The clear meaning of the Founders is that the approval of both would be necessary.
Finally, please note the absence of any reference to secession.
Once again, the Constitution does not specifically forbid secession and it also does not specifically allow secession, either. Your sole claim that that right exists lies with the 10th Amendment. My claim is that the right of unilateral secession is not granted by that Amendment or any other.
Finally, an analogy: even though your approval is required before anyone may enter your home, allow me to suggest that such approval is hardly required before your guests may leave.
Your analogy is rather lame because we are not talking about you asking me to leave your house. We are joint tenants in the same house. A better analogy would be if you wanted to cut off the one wing of the house you happen to live in and move it. Since we own the whole property jointly that should require the approval of both of us.
That may be true – but I, at least, do not have to base my argument upon vague implications.
No, you base your argument on your belief that the Constitution requires congressional approval for every thing affecting the status of a state - except unilateral secession. That the Constitution either forbids or requires congressional approval for other actions by states where the interests of the other states may be impacted - but somehow allows for unilateral secession. It is your argument which seems to be vague to me.
More to the point, apparently the court need not issue rulings unless it so desires.
No, the court issues a ruling on matters which comes before it. While it is true that the Supreme Court can chose not to hear a case, I am not familiar with any instance where the Alien and Sedition act was brought before the court and the court refused to hear it. Unless that happened then your claim that the Supreme Court ignored the matter is ridiculous.
and in the words of Mr. Justice Antonin Scalia...
Article III Section 2, Clause 1 says, among other things, that the judicial power of the Supreme Court extends to all cases, in law and equity, arising under the Constitution, and to the laws of the United States made under it. Clause to says that the jurisdiction of the court is either original or appellate, depending on the parties involved. The definition of 'jurisdiction' is the power to interpret and apply the law for a specific area. Justice Scalia's quote nowhere says that it is not the duty of the Supreme Court to interpret laws made under the Constitution. Nor does he say who the last word on what the Constittion means is. Until he specifies that I'll continue to depend on the Supreme Court.