Replies

"You seem to be missing the point that those of us who have reached the conclusion that the decision to secede is reserved to the States and the people because it is not explicity prohibited by the Constitution are arguing that the laws of the US (and therefore the jurisdiction of the court) no longer apply to States that are no longer in the Union."

I am not missing the point at all. I believe that your premise is without foundation. You have reached a conclusion, 140+ years after the fact, that there existed a "derived" right (one not explicitly stated) of secession in the Constitution. You do this from an historical point of view. The Supreme Court, about 10 years after the fact, determined no such right ever existed, and they made this determination within the legal framework provided by the document itself. Please note, that the priciples in Texas v White apply to all the states. California, Michigan, or Maine have no more right to secede now as they did 140 years ago; nor do Texas, or Virginia, or South Carolina. You believe that your perspective is as valid as that of the 1869 Court, as both are made after the fact; however you lack the legal standing and authority of the Court. There was no a priori verification of the so-called "right of secession."

You premise is that because secession was not explicitly prohibited by the Constitution, it is a right reserved by the states under the Tenth Amendment. The Tenth Amendment talks about "powers" rather than "right." The known legislative history of the amemdment indicates that it was almost an afterthought. It has been called a "truism." And no part of the legislative history refers to secession.

The modern interpretation of the 10th is "... to encompass any implied constitutional limitation on Congress' authority to regulate state activities." The 19th century intepretation was that "... Congress has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it." Clearly, the idea was to limit the power of the federal government and to allow more local control. There is nowhere a discussion on the right of secession. The issues of the day were "national banks" and the "collection of taxes."

Your argument is that the Constitutional Union was a convenience for the "sovereign" states, that they could enter or leave at will. My view is that under the Constitution, "union" indicated permanency and a subjugation of some aspects of "state's rights" to federal authority for the purpose of building a nation.

In other posts on this thread I have described how a state, or states, might lawfully attempt to secede from the union. These were not my ideas - some belonged to Jefferson Davis before his jumped ship.

And now a short post script regarding Alaska. I am afraid that what you describe, hypothetically, is truer than you think. It is our heritage that if a people are oppressed, they have the right to revolt. With that right goes the unerstanding that if you fail, you will suffer the consequences. The South tried and failed in their War of Independence. Today, you can not seriously argue that no one in the former CSA is obligated to follow the laws of the USA. Either you are a part of this country, sharing in its opportunities and civil obligations, or you are an anarchist. The antebellum South died in 1865, a victim of its own rhetoric and lack of a solid moral foundation; and with it went one of the great evils ever to mar the continent.

conclusion, 140+ years after the fact, that there existed a "derived" right (one not explicitly stated) of secession in the Constitution. You do this from an historical point of view. The Supreme Court, about 10 years after the fact, determined no such right ever existed, and they made this determination within the legal framework provided by the document itself.

This is the same reasoning used by activist judges today.They assert the Constitution is an evolving document and they rule by their idea of right and wrong. 10 years before the fact the right of secession was a commonly accepted concept throughout the Union. With over 200,000 dead bodies they could rule no other way 10 years after the fact.

I am not missing the point at all. I believe that your premise is without foundation. You have reached a conclusion, 140+ years after the fact, that there existed a "derived" right (one not explicitly stated) of secession in the Constitution. You do this from an historical point of view.

But I think that your premise is without foundation and given my reasons why as I've said in previous posts. As is always the case in this debate, its all a matter of opinion.

You believe that your perspective is as valid as that of the 1869 Court, as both are made after the fact; however you lack the legal standing and authority of the Court.

Thats the fundamental argument. Did the the court have any more legal standing and authority than I do? You have to decide first whether or not secession is a reserved power before you can figure out if the court had any legal standing. That again comes down to your opinion of what it means when the Constitution is silent.

The known legislative history of the amemdment indicates that it was almost an afterthought. It has been called a "truism." And no part of the legislative history refers to secession.

See, this sounds like a liberal arguing against the 2nd Amendment. If one doesn't like the logical results of what the Constitution says, then say that the amendment doesn't really mean what it says or that it doesn't apply to the modern day or that it was just something the founders stuck in for no real reason. The words in the Constitution actually mean things.

The modern interpretation of the 10th is "... to encompass any implied constitutional limitation on Congress' authority to regulate state activities."

Here we are getting close to our problem. You care about what the modern interpretation of the 10th is. I don't. I care only about what the States meant to ratify because that is the only interpretation that has the stamp of the people on it.

The 19th century intepretation was that "... Congress has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it."

I care only about what the States ratified and what they intended to ratify. How it was interpreted by FDR's court or by Chase to mean what they wanted it to mean is less important than what the people, through their States, meant to ratify.

Clearly, the idea was to limit the power of the federal government and to allow more local control. There is nowhere a discussion on the right of secession. The issues of the day were "national banks" and the "collection of taxes."

It doesn't matter that reserved powers were not listed in order. The founders intended that the government be only for delegated purposes. They listed the delegated purposes and powers. They also listed explicitly the things prohibited to States. It would be silly to list 10,000 things NOT delegated to government and list 10,000 things NOT prohibited to States. They just listed the prohibitions and the delegated powers with the notice that anything else belonged to the States or people respectively.

My view is that under the Constitution, "union" indicated permanency and a subjugation of some aspects of "state's rights" to federal authority for the purpose of building a nation.

I don't disagree with that. For instance, I do not believe in the old theory of Nullification. While a member of the Union the States agree to obey the laws of the land. That however, doesn't imply that a State cannot leave the Union if its people desire it.

In other posts on this thread I have described how a state, or states, might lawfully attempt to secede from the union. These were not my ideas - some belonged to Jefferson Davis before his jumped ship.

I assume that it entails asking the other States to let you go. In the case of my Alaska scenario they could ask to be let go. But since their concerns were not taken into account on the initial problem it is rather doubtful that the other States would have any interest in letting them go. Do governments get the final decision on whether their actions are tyrannical or not? If so, there has never been a tyrant.

And now a short post script regarding Alaska. I am afraid that what you describe, hypothetically, is truer than you think.

I'm prettu aware of how bad its getting.

It is our heritage that if a people are oppressed, they have the right to revolt.

This is always an interesting argument also. You argument seems to say that "self determination" is not an inherent right, but fighting an oppressor is a right but if you don't win then the opressor is not an opressor.

I'm sorry. But in my view our nation is founded on the right of self-determination. I don't believe that the founders, having just fought a war to secure self-determination for their States, would deny peaceful self-determination for their descendants. In fact, they exercised peaceful self-determination when they broke the "permanent pre-existing union of the articles" and designed to form a new union with 9 of the States. They were willing to let 4 of that "permanent and pre-existing union" go their own way in peace if they did not wish to join the new union.

Today, you can not seriously argue that no one in the former CSA is obligated to follow the laws of the USA.

My view has always been that forcing the southern States to remain in the union was illegal and contrary to our foundational concepts of self-determination, consent of the governed, and liberty. But long before I arrived on the scene the people of my State and the other southern States accepted the defacto situation and later even embraced it. By functioning as part of the union, regardless of how they got there, they have once again given their consent to be governed. That does not prevent me from holding the view that the right to withdraw is a necessary part of a voluntary Federal Republic.

Either you are a part of this country, sharing in its opportunities and civil obligations, or you are an anarchist.

Not true at all. I consider myself a US citizen and I have no interest in promoting any secession. That doesn't prevent me from believing that States are not bound to a Union that no longer offers them the benefits they joined for or that tyrannizes them. There may come a day when we need this tool.

The antebellum South died in 1865, a victim of its own rhetoric and lack of a solid moral foundation; and with it went one of the great evils ever to mar the continent.

Your opinion on that, which I am not going to debate with you, should have nothing to do with your view of secession as a general concept. I might use my electrical cord to strangle someone, but that does not make all electrical cords bad tools.