I insist that it is a fundamental question whether there are any intrinsic limitations to the kind of power that the people can grant to their government -- any government. This is what "unalienable rights" implies.
I ask this question not because it will immediately settle the question of secession, but because I think your argument that a right of secession is reserved because the Constitution does not deny it implies that any power a state government might be granted by its people would be, by that fact, legitimate.
I believe that the meaning of the Amendment must be understood on the basis of the political principles of the Founders, and of all decent Americans. At the absolute rock bottom of those principles is the principle that the people cannot grant to their government the legitimate power to violate unalienable rights. Any government, ever.
Nor is it a legitimate government power, or power of the majority, to withdraw, without adequate cause, from fundamental political arrangements. Governments don't have the implicit right to dissolve. Even majorities do not have the implicit right to dissolve political communities simply because they have come to find such communities burdensome. Do you think they do? Do you think that all political communities are perpetually one 51% vote away from dissolution, at whatever cost to the minority?
I believe, and think the Founders believed, that the sword-bearing political arrangements we call "governments" represented commitments by the people as a whole to arrange their affairs, for the security of unalienable rights, in ways that were reliable and permanent.
I think our real disagreement is not about such matters, but about whether the national government was a government. You don't really believe, do you, that any group of people under a government can, at any time, declare themselves a new polity and simply withdraw from their previous arrangements? Our disagreement is whether the people of a given state, say Virginia, who did, as a political community, take part in a formal compact to form a general government with powers extending even to individuals of their community, can simply declare that they think otherwise now and withdraw. Lincoln says this is the recipe for anarchy, because the principle is that a minority, or even a majority not reasonably consulting its best judgment, can simply alter the political arrangements to which it has made solemn commitment.
I think you take the 10th Amendment, clearly intended not to provide such an anarchical principle, but to emphasize the division of legitimate government powers among the constituted governmental authorities, and apply to it an absolutely unqualified notion of "power" as a way of avoiding all such considerations. At root, however, our disagreement is whether the people of the state did in fact commit their community to participation in a general government, and whether minorities, or passionate majorities, have the implicit right to depart from their political arrangements when they feel like it.
My own domestic duties call, and I am posting this now unreviewed, and without full consideration of your entire message. Please forgive if I am neglecting obvious portions of your post. I'll be back tonight and let's resume.
Are you suggesting that the actions of our government should be determined by the ‘moral’ interpretations of bureaucrats, rather than by the written law? If so, continuing this discussion will be of no further value. I would suggest to you that it is the duty of the people to establish ‘moral’ law, and the duty of civil servants to follow the law to the letter – or resign from office.
I believe that the meaning of the Amendment must be understood on the basis of the political principles of the Founders, and of all decent Americans. At the absolute rock bottom of those principles is the principle that the people cannot grant to their government the legitimate power to violate unalienable rights. Any government, ever.
You “believe?” “All decent Americans?” How nice. How, pray tell, do you define “decent Americans?” People who “believe” secession is unconstitutional?
“Unalienable rights?” Fine – let’s discuss “unalienable rights.” I’ve read the Declaration of Independence, and I have not once noticed a prohibition of secession listed among our “unalienable rights.” As a matter of fact, the Declaration itself would have been impossible – without an implicit recognition of the peoples’ right to ‘formally withdraw’ from a government that no longer enjoys “the consent of the governed.”
Nor is it a legitimate government power, or power of the majority, to withdraw, without adequate cause, from fundamental political arrangements.
My - that’s a rather broad statement. You seem to have completely ignored the potential reservation of such rights, have you not? No doubt because such a circumstance would completely refute your argument...
Governments don't have the implicit right to dissolve.
Really? Which do you consider “sovereign” – the “people,” or the “government?” By the way, your argument is specious, if the right to withdraw is reserved under the specific terms of the organic document – in this case, the Constitution. And the Tenth Amendment suggests that a State may indeed “dissolve” its connection to the common government.
Even majorities do not have the implicit right to dissolve political communities simply because they have come to find such communities burdensome. Do you think they do?
Read Article V – a three-fourths majority of the States can totally eliminate your supposedly “sovereign” federal government, anytime they decide to do so, for any reason whatsoever that seems applicable at the time.
Do you think that all political communities are perpetually one 51% vote away from dissolution, at whatever cost to the minority?
Please step back and take a look at the reality of secession. In the first place, the withdrawal of a single State (or even multiple States) in no way necessitates the “dissolution” of the union – a fact proven beyond any shadow of a doubt by the continued existence of the federal government during the years 1861-1865. Secondly, the recognition of the right of secession would guarantee that the central government will NOT operate on the basis of a “51% vote” – consensus is required on critical issues, or the member States may choose to protect the rights of their citizens by going elsewhere. If you want to see a “51% vote,” look at Clinton’s ‘assault weapons’ bill. Care to voice an opinion on whether or not that federal law violates the Constitution? (A warning up front – I am prepared to argue the issue, in a manner you might well expect.)
Or, better yet, consider your own hypothetical regarding ‘Moloch-worship.’ Your “sovereign” national government is, by definition, a ‘winner-take-all’ proposition: get one vote above a majority in Congress (“51%”) and the high court (another “51%”), combine it with one single vote in the White House, and you can mandate ‘Moloch-worship’ and human sacrifice any day of the week. That’s the reality of your argument. Get used to it.
I believe, and think the Founders believed, that the sword-bearing political arrangements we call "governments" represented commitments by the people as a whole to arrange their affairs, for the security of unalienable rights, in ways that were reliable and permanent.
Once again, “you believe.” Interestingly enough, your argument would seem to be applicable (in some ways) to the union formed under the Articles of Confederation – the word ‘perpetual’ (or something similar) is used no less than five times in that contract. Guess what? Even though sections of the United States Constitution were copied verbatim from the Articles, the word ‘perpetual’ fails to appear even once in the Constitution. Could the Founders have described the union formed under the new Constitution as “perpetual” in nature? Certainly. Did they do so? Certainly not.
You don't really believe, do you, that any group of people under a government can, at any time, declare themselves a new polity and simply withdraw from their previous arrangements?
I believe in the ‘rule of law’ - written law. Anything else amounts to the ‘rule of opinion,’ which is indistinguishable from monarchy, and which offers no security whatsoever to human liberty. Simply put, if you are a police officer, don’t pull me over and ticket me for violating your ‘sense of morality,’ or your ‘sense of decency:’ cite a written law. As Robert Augustus Toombs of Georgia observed 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. While I doubt its perfection, while I do not believe it was a good compact, and while I never saw the day that I would have voted for it as a proposition de novo, yet I am bound to it by oath and by that common prudence which would induce men to abide by established forms rather than to rush into unknown dangers. I have given to it, and intend to give it, unfaltering support and allegiance...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.’”
Show to me a constitutional prohibition of secession, and I will acknowledge that such action is unconstitutional. If you can not, stop wasting my time, because you’re no better than any would-be tyrant, who’s ‘word is law’...
Our disagreement is whether the people of a given state, say Virginia, who did, as a political community, take part in a formal compact to form a general government with powers extending even to individuals of their community, can simply declare that they think otherwise now and withdraw. Lincoln says this is the recipe for anarchy, because the principle is that a minority, or even a majority not reasonably consulting its best judgment, can simply alter the political arrangements to which it has made solemn commitment.
I refer you once again to the ratification documents of the people of Virginia: they specifically reserved the right to ‘resume’ the “powers granted under the Constitution” to the federal government. And, once again, you ignore the fact that a majority of the States may completely annihilate the federal government, if they choose to do so, for any reason they consider appropriate, under the terms of Article V. And, of course, you (and apparently Mr. Lincoln as well) ignore the simple fact that the right of secession in no way ‘alters’ any “political arrangements” which do not prohibit such action.
I think you take the 10th Amendment, clearly intended not to provide such an anarchical principle, but to emphasize the division of legitimate government powers among the constituted governmental authorities, and apply to it an absolutely unqualified notion of "power" as a way of avoiding all such considerations.
“Absolutely unqualified?” In what way? The colonies ‘formally withdrew’ from the British union (although they apparently lacked legal standing to do so). The ratifying States ‘formally withdrew’ from the union formed under the Articles, when they adopted the new Constitution. American history is founded upon one principle: that “the people have in all cases, a right to determine how they will be governed” – which includes the right of secession.
At root, however, our disagreement is whether the people of the state did in fact commit their community to participation in a general government, and whether minorities, or passionate majorities, have the implicit right to depart from their political arrangements when they feel like it.
Once again, having failed to identify any constitutional prohibition of secession, you insist (in the face of the plain words of the Tenth Amendment) that secession would be a ‘departure’ from the States’ “political arrangements.” At root, our disagreement is somewhat more fundamental than you suggest. I “insist” upon ‘written law;’ while you seem quite happy with unwritten ‘interpretations,’ or ‘implications,’ or moral views, or who knows what...
Back from trout fishing with my son George. [we caught 8]
May I suggest Federalist 22-28, and 59?
I'm not sure, from the language in the reply you received, that our third partner wishes to discuss things. But I could be, and hope I am, wrong.
The question here may be whether and how far natural law and, in general, reason beyond explict wording governs jurisprudence and statesmanship.
Regards,
Richard F.