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.
see post 118.
The secession produced no negative circumstances until Lincoln’s call for troops and the ensuing invasion.
Your point about ‘nothing allowing...’ is moot.
Exactly, your opinion. It is not a legal reference of any kind.
The South had votes within their respective States to leave the unions.They followed the best course of formal process they could. They voted to leave the union they earlier voted to join. It is their decision, their destiny, their desire, their votes, their States, their property. The union of the united States had the benefit of their joining and had a loss once they left and didnt like it. The North needed the South’s money and developed resources and refused to allow them to leave. It was about money, as it always is.
Your point is not founded either in fact or law, therefore your contention about applicable law is false on its face.
And with regard to your contention that unilateral approval was “not answered before the war” is laughable. The country was governed by law, not popular approval.
And next, of course, you know that every seceded state took the issue to their people, but you would still try to misrepresent the issue.
And finally you attempt to roll out multiple red herrings about secession, war, and respect. Why bother?
Why bother indeed.
Go on believing whatever you want and being wrong.
[You] Nothing allowing it either.
Doesn't work like that, Bub -- and you know it. We've been over this, and you are now responsible for knowing it.
Powers not delegated are reserved. See Federalist 49 and 84.
It is evident, therefore, that, according to their primitive signification, [bills of rights] have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations.
-- Hamilton, Federalist 84
Insurrection is not secession. Secession is neither insurrection nor rebellion.
Get with it.
You guys just want what you want -- to burn the South (or the West, or whatever) and take what you want. You just want it all your way, no arguments.
Your idea of a national motto is,
WE don' need no steenkin' bazzhes!!
You're all so charming. Why would anyone want to secede from you?
</sarc>
OK.
The power to admit a state: Article IV, Section 3 "New States may be admitted by the Congress into this Union..."
The power to approve states combining or splitting up: Article IV, Section 3: "but no new States 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."
The power to approve any change in the border of a state: Article I, Section 10 "No State shall, without the Consent of Congress,...enter into any Agreement or Compact with another State, or with a foreign Power" prevents Texas, for example, from working out a border change with Mexico since that would be a treaty as well as preventing Texas from working out a border change with Oklahoma.
All other changes in status require Congressional approval, by implication leaving does as well.
BTW, you figured out if the Air Force or NASA are Constitutional yet?
My aren't we in a pleasant mood today? Talk about kicking things off on the right note!
Reply 128.
Nah, just wholesale theft of federal property and repudiation of responsibility for debt and national obligations, not mentioning the ability to cut off the central part of the country from access to the sea via the Mississippi any time the Davis regime felt like it. Nope, no negative impact in that at all, is there? </sarcasm>
And if the war had a negative impact on the South, well then the confederacy shouldn't have started it, should they?
And what legal reference do you back your opinion up with?
The South had votes within their respective States to leave the unions.
In some. In other states it was an appointed convention that took them out. In two instances, North Carolina and Arkansas, the people voted down secession and the legislature took them out anyway. And that's not including the pseudo-confederate states like Missouri and Kentucky.
They voted to leave the union they earlier voted to join. It is their decision, their destiny, their desire, their votes, their States, their property.
There share of the debt they repudiated...their share of the obligations they walked away from...and it was U.S. property they stole which is to say it belonged to all the states and not just the ones stealing it.
. The North needed the South’s money and developed resources and refused to allow them to leave. It was about money, as it always is.
Absolute nonsense.
Powers not delegated or prohibited are reserved. The power to admit a state and to approve any change in status once it's been allowed to join is a power reserved to the United States.
But we've been through this time and again haven't we? I haven't convinced you and you haven't sold me on your lame claims. Why go down that rabbit hole once more? Especially since you started with the name calling two or three posts in?
But there is not one word in the document that says that now is there?
BTW, you figured out if the Air Force or NASA are Constitutional yet?
Yes I have but as I have already stated, you can tear down your own straw men!
There is not one word that allows for NASA or an Air Force now is there?
Yes I have but as I have already stated, you can tear down your own straw men!
If you could you would share it with us...unless it makes you out to be a hypocrite. The old "there are no implied powers, except sometimes...when I say there are" argument?
“And what legal reference do you back your opinion up with?”
None. I actually know the Constitution says nothing about leaving the union, and I do not need to infer what it might say. I also have not said it is a matter of a legal issue as you have. I understand rights and the difference between right and wrong. I understand the implications of Might is Right.
See, you take the approach that the federal government somehow owns the States and that they are not sovereign States as they are. I have read the founding father’s comments and know they never intended ownership by the federal government.
It is like a divorce, the beaten women need not ask her abusive husband for a divorce. He won’t grant it anyway. She simply leaves him.
Not hardly! There are no implied powers period end of story!
If states may leave the Union without the consent of the other states then can the other states expel a single state against it's will?
See, you take the approach that the federal government somehow owns the States and that they are not sovereign States as they are. I have read the founding father’s comments and know they never intended ownership by the federal government.
No, I'm saying that all the states are equal and that those leaving are not more equal than those staying, and that the Constitution protects all the states and not just the ones leaving. I have no idea how you managed to conclude the opposite.
It is like a divorce, the beaten women need not ask her abusive husband for a divorce. He won’t grant it anyway. She simply leaves him.
That's not called 'divorce'. The legal term is 'abandonment'. And if the woman runs up the credit cards before leaving, takes all the community property she can get her hands on, and takes a shotgun and fires a few rounds at her spouse on her way out the door then there are other legal terms that can be applied as well.
And in any case, how you can somehow stumble to the conclusion that it was the South who was the abused spouse in the analogy is beyond me.
So then NASA and the Air Force are only two of the hundreds or thousands of illegal federal departments and agencies, right?
Your words not mine!
Figure it out for yourself Mr. Implied Powers.
I can. You can't.
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