Posted on 08/27/2007 1:37:39 PM PDT by BnBlFlag
An excellent legal read, the only thing I wish he had included was a solution; for it makes me saddened, and dispared!
Secession wasn’t even illigal: per the 10th paraphrased “whatever (powers) not explicitly granted to the Federal government, shall be reserved to the states, and to the people of those states”.. Secession was not forbad, nor supremecy of the “Federal Government” over the states established: The Confederacy had a legal right to form and exist..
That ruling was about the repatriation of monies taken from the treasury, not about the right of secession.
Regarding Secession and the WBTS, here is a very fine slideshow of paintings and photos of Stonewall Jackson set to the tune of “The Bonnie Flag”! And a fine version of the song it is.
http://www.youtube.com/watch?v=Yc8MBIrqqzE&mode=related&search=
The Tenth Amendment states: "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."
We can all agree that the right to secede is not expressly "prohibited" to the States in the constitution. If it were, the argument would be mute. Thus, under the plain meaning of the Tenth Amendment, the States retain or possess the right to secede, just as citizens possess the right to renounce ones citizenship. The Tenth Amendment also makes clear that a right or power need not be expressly granted to the States by the Constitution. Rather, the States are irrebuttably presumed to have such a power, unless that power is expressly taken from them by the Constitution.
This textual reading is buttressed by the historical fact that the States had the right to secede in 1776 and did not expressly give up that right in ratifying the Constitution. To the contrary, several states, including New York, in their acts of ratification, noted that "the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness."
Where is that written?
Quote the part of it that forbids secession. I'm genuinely interested. It's not in any part of it that I can find.
Not in any part I can find, either. Nor can I find anything in the Constitution which allows secession without the consent of states. Perhaps you can point that part out?
What about the differences? Unlike the revolution, the Southern states not only had representation in government but a disproportionate level of representation in government. Unlike the Southern states, the Founding Father's knew that their actions were illegal and would have to fight for their independence. And, of course, the Founding Father's won their rebellion while the Southern states lost.
LOL! Exactly the way I feel about this.
Try quoting accurately. What the 10th Amendment says is: "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." The word 'explicitly' does not appear, and you completely forgot the part about powers prohibited to the states. Implied in the Constitution is the need for Congressional approval to leave.
The Confederacy had a legal right to form and exist..
Sorry, but it did not.
And you miss the point of that clause completely. A state can split up with two conditions: 1) the consent of the state legislature and 2) the consent of Congress. When Congress signed that article admitting Texas as a state which contained that clause then condition 2 was met. That leaves only condition 1 to needing to be met. Texas is equal to all other states and is treated the same as all other states in needing that approval if they want to split up. But Texas already has that approval -- the other 49 don't.
The legality of secession was a question before the court because the defense made it a cornerstone of their case. The defense claimed that since Texas had seceded and had not completed reconstruction, then it wasn't a state in the Union and had no right to take their case before the Supreme Court. The court, quite rightly, had to determine if Texas had ever been out of the Union. They ruled Texas had not.
Sure, no problem. It's right there in the Tenth Amendment:
Amendment 10Unless you can point out where the power of approving secession was delegated to the United States or prohibited to the states, then it is a power they retain individually.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.
Except for the ex-Confederate states after 1865 anyway, right? It was a "voluntary request" to rejoin only after the Union Army was unleashed on them and allowed to wreak havoc for four years. No coercion at all there. Nope, none.
Can we also agree that the word 'expressly' is nowhere to be found in the Amendment? And that implied powers, as outlined by Chief Justice Marshall, also exist? And that those implied powers could be delegated to the United States or denied to the states?
This textual reading is buttressed by the historical fact that the States had the right to secede in 1776 and did not expressly give up that right in ratifying the Constitution.
Actually, no. A textual reading of the Articles of Confederation make it clear that it was a perteptual union.
To the contrary, several states, including New York, in their acts of ratification, noted that "the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness."
In those ratification documents was also a statement saying that they ratified the Constitution as passed by the convention. The Constitution proclaims itself the supreme law of the land, and if anything, including ratification documents, conflict with it then the Constitution overrules them. According to the Supreme Court the right to secede unilaterally is not in the Constitution.
“If it were, the argument would be mute.”
No, it would be moot. Mute is what many of our so-called constitutional experts ought to be, since there seems to be a lot of misinformation being tossed around here.
As a resident of Washington State, something I’m not always proud to admit, I hope we never decide to secede. So much of this state is owned by the federal government that by the time we got done paying the rest of the states for their interest in it, we’d have to apply for foreign aid as we’d be broke. So we would be right back to surviving on federal money with strings attached to it. What improvement would that be?
Well, no, the treaty says that “New states, of convenient size, not exceeding four in number, in addition to said state of Texas, and having sufficient population, may hereafter, by the consent of said state, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the federal constitution.” Said states can be created only with consent of Congress when the split occurs. A blanket pre-approval is unconstitutional.
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