Posted on 02/17/2010 3:43:05 PM PST by Constitutionalist Conservative
Prior to the American Civil War, it was popularly assumed that states which had freely chosen to enter the Union could just as freely withdraw from said union at their own discretion. Indeed, from time to time individual states or groups of states had threatened to do just that, but until 1860 no state had actually followed through on the threat.
Since then, it has been considered axiomatic that the War “settled the question” of whether or not states had the right to secede. The central government, backed by force of arms, says the answer is No. As long as no state or group of states tests the central government’s resolve, we can consider the question to be “settled” from a practical viewpoint.
This assertion has long troubled me from a philosophical and moral viewpoint. We are supposedly a nation of laws, and the central government is supposedly subservient to the laws that established and empower it.
In a nation of laws, when someone asks, “Do states have a right to secede from the Union?”, a proper answer would have one of two forms:
Here, x would be an explanation of the laws that supported the Yes or No answer.
With the secession issue, though, we are given the following as a complete and sufficient answer:
“No, because if any state tries to secede, the central government will use force of arms to keep it from succeeding.”
There is no appeal to law in this answer – just brute force.
Based on this premise, the central government can amass to itself whatever right or power it chooses, simply by asserting it. After all, who has the power to say otherwise?
Come to think of it, that’s exactly how the central government has behaved more often than not since the Civil War.
This issue came to mind today because of an item posted today on a trial lawyer’s blog (found via Politico). The lawyer’s brother had written to each of the Supreme Court justices, asking for their input on a screenplay he was writing. In the screenplay, Maine decides to secede from the US and join Canada. The writer asked for comments regarding how such an issue would play out if it ever reached the Supreme Court.
Justice Antonin Scalia actually replied to the screenwriter’s query. I have a lot of respect for Scalia regarding constitutional issues, but his answer here is beyond absurd.
I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court. To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, "one Nation, indivisible.")
He actually said that a constitutional issue was settled by military action. Oh, and by including the word “indivisible” in the Pledge of Allegiance, the issue became even more settled.
What if the president were to send out the troops to prevent the news media from publishing or broadcasting anything critical of his administration? This is clearly an unconstitutional action, but by Scalia’s logic, if the president succeeds, we must then say that the military action “settled the question” of free speech.
If these scenarios are not comparable, I’d like to hear why.
The Federal government did not create the States, they created it to serve their interests.
It does not own them. The States are sovereign, no matter what BS Lincoln pedaled about the marriage being forever.
The State's started the marriage and they can make the divorce.
Interesting. When it served his purposes Lincoln defended secession. Apparently, as Glenn Beck said yesterday, he “found himself in office.” Regardless of what Lincoln said in 1861, secession is Constitutional. If our founders did not think so we would still be Colonies of Great Britain. It must be noted that during a debate on January 12, 1848, Lincoln, then a young first term representative, argued with skill and power in favor of the right of secession. “Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government and form a new one that suits them better. This is a most valuable and most sacred right, a right which we hope and believe is to liberate the world!” Lincoln thundered. The action he took in sending 75,000 northern troops to murder Southrons in order to prevent them from seceding is evidence he lied to get elected.
>>With the secession issue, though, we are given the following as a complete and sufficient answer:
“No, because if any state tries to secede, the central government will use force of arms to keep it from succeeding.”
There is no appeal to law in this answer – just brute force.<<
I am NOT addressing the underlying question — I have learned over the years these Civil War threads get wilder than the Crevo ones!
But I would like to point out this is a bit fallacious in that all laws are, in the final analysis, enforced from the barrel of a government gun.
Other than that, have at it.
You start with a completely inaccurate assertion. The Founding fathers, Andrew Jackson, even Stephen Douglas, all regarded secession as treason. Secessionists, then as now, were regarded as lunatic fringe. That is why the secession crisis of 1860-61 caught most by surprise.
A fair number of states were raised up out of territorial claims held by Virginia and the Carolinas. Rescission of their statehood would revert them to their prior status as Virginia land claims.
Yet other states were raised up out of the Louisiana Purchase ~ that is, land owned by the United States. Rescission of statehood with any of them should entail reversion to that status.
Texas was a recognized independent nation. Presumably it, and part of Oklahoma and New Mexico could revert to that status.
Basically every state in the Union since the original 13 states combined adopted the Articles of Confederation has been created out of some prior extension of government under a different state, or the lands owned by the United States, or the voluntary accretion to the United States by another country.
I suppose it's perfectly OK for a state to leave the union, but that does not give them a right to take the land with them (except for Texas and maybe California).
Best secessionists talk to the Canadians first to see if they'll loan them some territory to erect their own government.
No.
Because like every single other political question in the history of mankind, it must eventually be resettled by new generations with force of arms.
It would seem that under the 10th amendment, states may have a right to secede, because secession isn’t mentioned in the constitution. But a counter-argument could be made that a seceding state gives up its rights under the 10th amendment; there’s nothing in the constitution prohibiting war against a seceded state! Also the Federal Government does have the duty under the constitution to guarantee a republican form of government to states, which could be interpreted to at least limit the right to secede.
What’s certain is when Jefferson Davis ordered the attack on Fort Sumter the legal arguments became moot, and Southern secession became purely a test of military strength. The South picked the wrong man to lead it, and suffered the disastrous consequences.
America’s Second Revolution was unsucessful- it just so happened that the tyrant in that case was able to subjugate the rebels by invading and conquering their territory, as well as killing many Americans. No more, no less. Anytime tyranny succeeds, liberty dies. Lincoln was no friend to the Constitution, in fact, he was one of its worst enemies.
The only thing we didn't do that we should have done was purge the United States of every last single member of the Democrat party.
“No, because if any state tries to secede, the central government will use force of arms to keep it from succeeding.”
There is no appeal to law in this answer – just brute force.<<
And of course, the refutation of this simplistic answer is writ large across the pages of American history.
1. The military forces in the past split, rather than all going to one faction.
2. In the 1940s nuclear arms were created which makes engaging in war in which you did not reatain one hundred percent of the military and one hundred percent of military production have a whole new level of bad consequence.
Next contestant.
It falls apart right there because many political leaders from Webster to Clay to Madison to Jackson to Buchanan to Lincoln all disputed the idea that states could secede - either unilaterally or at all.
So a state government or convention can't simply declare on its own that its citizens are no longer a part of the country.
Checks and balances, checks and balances: to give any state institution unchecked power to dissolve ties with rest of the country goes against both the spirit and the letter of the Constitution.
It appears you are engaging the OP...?
Lincoln, in a very Kerry-esque manner was for seccesion before he was against it.
In any case, the minutes of the constitutional convention make it clear that the men who wrote that august document clearly believed in a right to seccede.
I believe I am primarily engaging the author of the article.
:P
That's not true.
In any case, the minutes of the constitutional convention make it clear that the men who wrote that august document clearly believed in a right to seccede.
Did they now?
OK — I was confused a bit there :)
Not the first time and not the last, I am sure :)
Since you missed it the first time: January 12, 1848, Abraham Lincoln said, “Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government and form a new one that suits them better. This is a most valuable and most sacred right, a right which we hope and believe is to liberate the world!”
“Any people, anywhere, being inclined and having the power, have the right to rise up and shake off the existing government, and form a new one that suits them better. This is a most valuable, a most sacred right, a right which we hope and believe is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government may choose to exercise it. Any portion of such people, that can, may revolutionize, and make their own of so much of the territory as they inhabit. More than this, a majority of any portion of such people may revolutionize, putting down a minority, intermingled with, or near about them, who may oppose their movements.” ~ Lincoln January 12 1848
“When all government, in little as in great things, shall be drawn to Washington as the Center of all power, it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated.” – Thomas Jefferson
“That’s not true.”
But, it is. As a young Congressman Lincoln had no problem with the idea of secession, and he said that all that was needed was the will and the power to bring it about. Perhaps he was saying that secession was okay as long as one can pull it off. In which case, the Confederate states were fully within their rights to secede (according to Lincoln’s logic), BUT ONLY AS LONG AS THEY WERE NOT FORCED BACK IN!
I would say that: (1) the states have the right to secede as a matter of natural law; see the Declaration of Independence for a thorough discussion. (2) the states have the right to secede as a matter of practical fact in 2010; Obama is a sissy who would be unwilling to initiate a civil war just to retain power over people too stupid to understand how lucky they are to have a benevolent tyrant who makes all their decisions and spends all their money for them, while the United States military would have a whole lot of sympathy for Texas as a free and independent nation, which would interfere with any halfhearted military action against TX.
The core of the Democrat Party saw every action of the Bush administration as nothing more than treasonous corruption. The core of the Republican Party sees the Obama administration in the same light.
Take specifically abortion. To those on the right it is the clearest case of murder, understood by all as the killing of an innocent. To the left abortion is the ultimate affirmation of freedom and liberty.
As in the above examples, and in an unending list of others, there are issues on which the citizens of these United States will never agree. This should not come as a surprise to anyone. It was certainly not a surprise to the Founders. That is why they constructed a Republic based on a government of limited powers. The key to which was a distribution of powers weighted inversely to the breadth of their jurisdiction.
The key to a stable country is "the consent of the governed." Such consent is only attainable when there is agreement on what the government is trying to do. And the ability of human beings to reach consensus is inversely proportional to the size of the group.
Abraham Lincoln and his radical Republican brethren killed this basic principle in America. And the dysfunction in the nation has grown in proportion to the growth of Federal power ever since.
We are again in crisis as a nation. The very fact that secession is under discussion is proof of this.
Does any reasonable person believe this to be a nation operating under a system of limited government? Does anyone really think that it is the function of the Congress, the President or the Supreme Court to restrict the powers of the Federal Government? They ARE the Federal government!
The Constitution can only function to bind a nation of sovereign States. The independence of the States is the fulcrum of the balance the powers in our system.
Right now the Federal Government rules without constraint. That this is unstable is becoming more and more clear. The end state of the path we are on is not pretty. But perhaps the citizens will recover their will and return the country to its roots. Let's hope so.
Well said Trek. Let’s pray and hope. This quote comes to mind as I read some of the arguments above,
Samuel Adams:
“If you love wealth better than liberty, the tranquility of servitude better than the animating contest of freedom, go home from us in peace. We ask not your counsels or your arms. Crouch down and lick the hands which feed you. May your chains set lightly upon you, and may posterity forget that you were our countrymen.”
Tejas
I gather the principle you are referring to "the consent of the governed." It should be obvious that the slavemasters, both in their deification of slavery and in attempting to overthrow the regime of 1776, were not much interested in the consent of the governed.
It was not the Republicans who brought us unlimited government, it was the Democrats. The Republican period 1861-1933 was in fact a time of very limited government, although, of course, you might disagree if you are a Klansman. In contrast, it is the Democrat ascendancy since 1933 which has brought in unlimited government.
There were only conflicting readings of the Constitution, which didn't directly address the question.
That is not an uncommon situation in constitutional law. Usually it's the courts that resolve the question.
In this case, matter didn't come up before the courts before the attempted secession and resulting war.
The Supreme Court did hear a case and pass judgement on a closely related matter after the war, ruling that unilateral secession at will was not constitutional.
Unfortunately, because of the sequence of events people say that the question was decided by the war -- in other words, by force of arms. That's only because there was no definitive legal ruling before the war.
Did you go to the northern government schools? As the victor, the North did get to write the history, or, historical myths. The South did not fight for slaves. Lincoln did not send 75,000 troops to Southern soil to kill brothers for slaves. The South could not survive the punishing tariffs the were forced to pay in order to prop up the North. Lincoln’s party needed those tariffs. Eventually he used the slave issue to gain support for the unpopular war- unpopular in the North. Do you have any idea how many in the South even owned slaves at the time of the Invasion From the North? Do you know what States owned ALL the slave ships and perpetuated that stain on humanity? You are proving yourself to be an ignorant bigot.
Thank God our founders had no such difficulty with the legality and moral obligation for seceding from a tyrannical government. Or we would still be slaves of Great Britain.
Imagine fighting at Iwo Jima or Normandy and hearing that some state back home had pulled out of the country and the war effort.
and that applies how?
Tejas?
By ZZ Top?
Every Confederate said that secession was about slavery. Read some of the contemporary documents:
Georgia reasons for secession:
http://www.sonofthesouth.net/leefoundation/Georgia_Secession_Causes.htm
Mississippi secession resolution:
http://mshistory.k12.ms.us/articles/175/index.php?s=extra&id=177
South Carolina resolution:
http://facweb.furman.edu/~benson/docs/SCaddress.htm
Jefferson Davis April 29, 1861:
http://facweb.furman.edu/~benson/docs/davis.htm
In the spirit of comity that fills us all on Free Republic, I think I will overlook your trying to raise the old "Klansman" canard and treat your remarks seriously. Besides, you seem to have swerved into the truth.
The unbridled growth of Federal power has been promulgated by both national parties. That's the point. That is why it is so important to restore the Constitutional balance by repealing the 14th, 15th, 16th and 17th Amendments as a starting point to restoring the Sovereignty of the States.
The plain language of the 15th Amendment is, of course, most reasonable. And in fact it did serve its purpose in resolving the legal status of those freed by the 13th Amendment.
But you expose yourself with your foolish remarks by failing to see abominations like Motor Voter and the endless fraudulent challenges that are undermining the electoral process (e.g. Gore 2000, Franken 2008) as being the direct result of the debasement of the Constitution that began under Reconstruction. And in this case the abuse by the Federal Courts of the 15th Amendment.
Incorrect. He was nothing more than a tyrant who said he would wage war on Americans whether it freed the slaves or not. Read more history before you show such ignorance-!
Sorry. His mother and sister are buried on one of our old farms. I’d as soon toss you and your kind into plastic shredders as say one critical word about Abraham Lincoln.
Sorry for YOUR blissful ignorance. Hopefully you have no offspring.
There are certainly enough places in this world for your kind of people to find whatever it is you want. Please go there. Soon.
Wow, that is appropriate for blind allegiance to a man who did throw “our kind” into the shredder. Way to keep the dream alive.
Did Texas have a right to secede from Mexico?
Hence, in the Pledge of Allegiance, "one Nation, indivisible."
The Pledge of Allegiance was written by socialist, statist, Francis Bellamy, who adopted the Story-Webster-Lincoln premise of “ one people, one nation indivisible” and was able to enshrine in the hearts of American school children the unconstitutional principles of a unitary, nationalist, and supreme federal government.
Conservatives of “our kind” were not thrown in the shredder. Slavers and their enablers were tossed, but they started the conflict. They fired the first shots. TS
“Did the Civil War truly settle the secession question?”
It absolutely did, whether anyone likes it or not - the Federal Government can and will use any and all power it has to bring a wayward state back into the fold.
Then again, if a state were to secede and successfully thwart the federal forces thrown against it, then the secession question will have been settled again.
In other words, the question is settled until it is not.
You like dealing in superlatives, don't you? My assertion is completely inaccurate, and all of the founding fathers regarded secession as treason. Huh.
Were you aware that New England, in particular, was home to secessionist movements from time to time? As I said in my essay, no movement really gained traction until 1860.
And all of the Founders thought secession was treason? Are these the same founders who worked so hard to build a central government that would be unable to tyrannize the states? Are these the same founders whose state constitutional ratification conventions (some of them, anyway, such as Virginia) explicitly reserved the right to withdraw ratification if they so chose? How many of the original colonies do you think would have ratified if they understood they were making an irreversible decision?
It is a good thing those with the kind of view you share are going to be out on your arse this November. Go hang out at the New York Times-! Learn some ‘respect’ there-!
And since you missed it completely, Lincoln was talking about rebellion, not secession. If he was supporting secession then why would he say "having the power" or "rise up"?
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