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.
Oh! BTW! There are no penumbras with things written in them either!
So you assume but I happen to think it is just the opposite.
I'm betting if you could without showing where it's implied then you would do so. But since you can't...
The 1st Civil War, through force, temporarily settled the question adequately for a Century plus.....The next Civil War will settle it again - with a different outcome, hopefully. Collectively, this country can’t survive with half [or more and growing] its population being net ‘users/takers’ of the GDP.
Oligarchy? Robert E. Lee and James Longstreet were in Army service, in Texas and New Mexico respectively. Toombs was out of office. Wigfall I don't know about, but Rhett was a newspaper editor. Some "garchy".
No, the real oligarchs were the tidewater and Delta planters with their big white houses and battalions of slaves -- and they had created, and voted for, the Constitutional Union ticket behind Bell, who was Breckinridge's only real competition in the South, but was beaten decisively.
The oligarchs were for Union, as were the old Jacksonians up in the mountain hollows.
Actually the nation is the people. The country is the land they live on, bounded by their borders; and the Constitution is the compact made among them....by consent.
And if you read the little human rights document known as "The Declaration of Independence", you'll see that sometimes, "when in the course of human events", such bonds are unilaterally broken.
It asserted in that document that this is a right of free peoples, whenever a government crosses the line into tyranny.
Killing 1/4 of the White males in the South, virtually all of them descendants of the original American colonists, in pursuit of an abstract claim about violating a contract, pretty much qualifies as violent Tyranny, much more than imposing a lousy 3% tea tax or whatever it was.
You guys just want what you want -- to burn the South (or the West, or whatever) and take what you want.
Yeah, lets get out the violins and play a sad rendition of "Dixie." Poor, poor you.
You just want it all your way, no arguments.
All you do is argue. You don't rebel and you certainly don't gain any kind of political traction. Arguing seems to be the only thing you do.
Not to mention that a significant portion of those takers are actually not part of the nation, but are in fact foreigners here without leave of the actual citizenry.
Sort of a recipe for fiscal disaster.
Oh wait, that already happened.
Next up: CWII!
“Lincoln was talking about rebellion, not secession. There is a difference between the two.”
I guess that’s why Southerners were called Rebels. Funny, in practically every piece of writing of the period the Confederacy was referred to as a rebellion. Even your sainted Lincoln called it rebellion.
Very dishonest of you -- the only "powers" discussed in the Constitution are those delegated by the States to the Union.
The concept of "prohibited powers" is a canard invented by you, for the purpose of flinging sand in the eyes of more honest discussants like Bigun.
Article 10 lists a string of powers delegated to the United States which the States agree not to exercise except through the United States.
Calling them "prohibited powers" in order to drive a wedge between the powers in play and the People is deliberate deception and constitutional subterfuge -- the worst kind of lawyer-talking.
These are all the People's powers, and they dispose them as they please, and ALL powers remain theirs forever. They are not alienated to your favorite federal butt-boys.
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.
No, it isn't. Notice that the States participate fully in the approval process for "adjustments" and the creation (and admission) of new States. This is not a federal prerogative but a shared power.
There is no imperium independent of the People for you and your would-be federal werewolves to use on the People like a club.
Turn about is fair play, thug. We'll play it while you watch your house and lawn burn. See what you think about things then.
You know what, big shot? You might just be right about that.
Let's look into it someday.
You have to understand non-sequitur. He is deeply enamored of Lincoln, and looks upon him almost as a deity. And his loathing of the Confederacy (and even the present-day South) is well known on FR. I do respect him for taking the time to study the subject (the War), though, as there are many who comment without having clue one about the War, and non-sequitur is certainly not ignorant. We do, however, have a profound disagreement as to the causes of the War, and it is very difficult carrying on a dialogue with him because his hatred does poke through. If he ever shelved his emotional investment (i.e., his deep hatred of the Confederacy), he would likely be an interesting adversary in a civil discussion of the issue.
Which is what it was. The War of Southern Rebellion.
A civil war is defined as two factions within the same country fighting for control of the government and nothing like that has yet happened here. (Historians and especially historians with an agenda are notorious for mislabeling things.)
I have found that you are correct on everything you said in that post.
I think it comes as a situation as agree to disagree with some .
Please keep up the good posts as I still learn new things on this subject even after 20 years.
It really is an amazing time in our history and it is sad that many do not take the time nor is it taught in the school system in a way it should be.
Try reading the Constitution some time. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
No, it isn't. Notice that the States participate fully in the approval process for "adjustments" and the creation (and admission) of new States. This is not a federal prerogative but a shared power.
What constitution are you thinking of? It sure isn't the U.S. Constitution.
Whoa, whoa, whoa. In your post #150 you said in 1848 when Lincoln approved of rebellion, rebellion was not the same as secession. When I pointed out to you that Lincoln (and pretty much everyone else in the North) considered the Confederacy “in rebellion,” you then must necessarily have agreed that rebellion and secession were, indeed, synonymous. You can’t in one post say they were not the same, and then in a subsequent post say they are. (Well, you can say it, but it destroys the basis of your argument.)
Say what? The Southern acts in 1861 were rebellion. Secession is legal, if done within the bounds of the Constitution. Rebellion is not.
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