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Antonin Scalia: No right to secede
The Washington Post ^ | 17 Feb 2010 | Robert Barnes

Posted on 02/17/2010 9:08:09 AM PST by Palter

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1 posted on 02/17/2010 9:08:09 AM PST by Palter
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To: Palter

Well, I think the COTUS grants the fed power to protect the borders (?)


2 posted on 02/17/2010 9:12:35 AM PST by wizard1961 (Teaper says: For 2010, let Sarah be Sarah)
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To: Palter

Then start looking at those BC cases and you better do it fast.


3 posted on 02/17/2010 9:13:10 AM PST by Frantzie (TV - sending Americans towards Islamic serfdom - Cancel TV service NOW)
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To: Palter
Carp like this is EXACTLY why the movement should NOT have politicians speak at our events. Perry made one remark about secession (a clap trap) at a tea party in Texas and now we're saddled with this.
4 posted on 02/17/2010 9:14:14 AM PST by Roccus (POLITICIAN.....................a four letter word spelled with ten letters.)
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To: Palter

Scalia is right as a legal matter. John Locke’s right of revolution that was used as a justification for the first American revolution is highly contingent — you have a right to revolution under the natural law if you win. If you don’t win, then you didn’t have a right to revolution. Fundamentally, the right of revolution is extra-legal. The constitution cannot trump the natural law, but it also doesn’t have to recognize all of the natural law (although there may be an argument that the catchall phrases in the 9th and 10th amendments indicate that the constitution doesn’t contradict the natural law).


5 posted on 02/17/2010 9:14:14 AM PST by FateAmenableToChange
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To: Palter

Again,,, it’s an interesting and humorous concept that the Supreme court says it’s illegal to seceed. Imagine the USA truly elected a marxist and became a socialist dictatorship. And that a state decided that the time to end their association had come, but that this SAME state still thought they must abide by supreme court rulings. Odd.
This reminds me of thinking you can stop a mass shooting incident in the mall, by posting signs that guns are priohibited on the premises.


6 posted on 02/17/2010 9:14:37 AM PST by DesertRhino (Dogs earn the title of "man's best friend", Muslims hate dogs,,add that up.)
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To: Palter

Well then that only leaves us with Judge Napolitano’s opinion:

http://www.youtube.com/watch?v=9b3Q89FZoY0


7 posted on 02/17/2010 9:14:52 AM PST by Kartographer (".. we mutually pledge to each other our lives, our fortunes, and our sacred honor.")
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To: wizard1961

Hey stupid at the supreme court! Here is the fact. The union is only held together by the constitution which is a piece of paper only valid as long as we the people believe it to be. You pigs in washington are shreading it by the day and making it moot. States can break away when you kill the document holding them together. Like it or not , pig.


8 posted on 02/17/2010 9:16:43 AM PST by RED SOUTH
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To: Palter

I never understood the idea that somehow a war decides a constitutional question.

Since when does OVERPOWERING the other side mean you are constitutionally correct?

That’s stupid, and those who say things like “the Civil War decided that” aren’t very logical thinkers.

It is a valid question, but to take the easy way out by pointing to the war is lame.


9 posted on 02/17/2010 9:16:55 AM PST by rwfromkansas ("Carve your name on hearts, not marble." - C.H. Spurgeon)
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To: FateAmenableToChange

Beautifully said.


10 posted on 02/17/2010 9:17:33 AM PST by ClearCase_guy (I was born in America, but now I live in Declinistan.)
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To: bamahead

ping


11 posted on 02/17/2010 9:19:47 AM PST by randomhero97 ("First you want to kill me, now you want to kiss me. Blow!" - Ash)
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To: FateAmenableToChange

That makes no sense. The winner isn’t necessary right....they just happened to win.


12 posted on 02/17/2010 9:20:49 AM PST by rwfromkansas ("Carve your name on hearts, not marble." - C.H. Spurgeon)
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To: Palter

But the point remains,,,If it’s even necessary to argue and discuss the right to seceed, then something has gone *seriously* wrong in DC. Instead of focusing on convincing us that they can force everyone’s continued association, maybe they better start to look deep and hard at why they are pissing off so many people and states.

Time for them to change their totalitarian Bullcrap, and not think they can just use legalistic games to force people to remain.


13 posted on 02/17/2010 9:21:08 AM PST by DesertRhino (Dogs earn the title of "man's best friend", Muslims hate dogs,,add that up.)
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To: randomhero97; Abathar; Abcdefg; Abram; Abundy; akatel; albertp; AlexandriaDuke; Alexander Rubin; ...



Libertarian ping! Click here to get added or here to be removed or post a message here!
View past Libertarian pings here
14 posted on 02/17/2010 9:22:31 AM PST by bamahead (Few men desire liberty; most men wish only for a just master. -- Sallust)
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To: ForGod'sSake

Of possible interest.


15 posted on 02/17/2010 9:22:51 AM PST by bamahead (Few men desire liberty; most men wish only for a just master. -- Sallust)
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To: RED SOUTH
That is really profound.
16 posted on 02/17/2010 9:23:06 AM PST by verity (Obama Lies)
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To: cowboyway; central_va; Idabilly

Could Justice Scalia be the author of the majority decision in Texas v White version 2.0?


17 posted on 02/17/2010 9:24:21 AM PST by Non-Sequitur
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To: Palter
"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."

Then why did the US specifically act to readmit the confederate states to the union? If they had no right to secede, then they never really left.

Also, if Virginia never left the union then the creation of the state of West Virginia, against the will of Virginia, would have been unconstitutional.

18 posted on 02/17/2010 9:24:47 AM PST by mlo
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To: Palter

I don’t think the Supreme Court had much to do with whether secession is legitimate.

It’s a war issue and if ever the need becomes great enough again it will be settled that way again.

Unless America is so rotten from progressivism that it can’t even lift a finger.


19 posted on 02/17/2010 9:27:32 AM PST by wardaddy (I have been in a serious RHCPers mood lately......)
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To: Palter
Antonin Scalia: No right to secede

Well technically, Nino, it's not the sort of thing you normally get a legal opinion about.

20 posted on 02/17/2010 9:27:36 AM PST by Still Thinking (Freedom is NOT a loophole!)
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To: DesertRhino
Again,,, it’s an interesting and humorous concept that the Supreme court says it’s illegal to seceed. Imagine the USA truly elected a marxist and became a socialist dictatorship. And that a state decided that the time to end their association had come, but that this SAME state still thought they must abide by supreme court rulings. Odd.

One would have to assume that a socialist dictatorship would have done away with the Supreme Court when it did away with the rest of the Constitution, so your point is somewhat moot.

21 posted on 02/17/2010 9:27:55 AM PST by Non-Sequitur
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To: Palter

With at least two of the three branches of government stating they don’t need no stinkin’ constitution then the states should be able to do whatever they please. Yo, Tony, didn’t one branch slap you down the other night on national, make that world, tv? Bought the clue, yet?


22 posted on 02/17/2010 9:28:09 AM PST by bgill (The framers of the US Constitution established an entire federal government in 18 pages.)
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To: RED SOUTH

I worry about you brother,, if you keep holding hour feelings inside, you might get an ulcer. Just say what you REALLY think!

Just kidding,, you said it perfectly. They shred the constitution on a daily basis. Then when faced with rising anger,,,they get to wave it in our face to control us? Who do these pricks think they’re kidding? Either both sides are bound by it, or none are.


23 posted on 02/17/2010 9:28:27 AM PST by DesertRhino (Dogs earn the title of "man's best friend", Muslims hate dogs,,add that up.)
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To: Palter

It’d be nice if Scalia would be so vocal about the illegality of the socialist revolution. Or about Obama being required to prove eligibility.


24 posted on 02/17/2010 9:30:04 AM PST by DesertRhino (Dogs earn the title of "man's best friend", Muslims hate dogs,,add that up.)
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To: rwfromkansas
I never understood the idea that somehow a war decides a constitutional question.

It didn't. Texas v White did in 1869. But even that case left open the option of secession with the consent of the other states so I don't know where Justice Scalia got his 'no secession at all' position.

25 posted on 02/17/2010 9:30:20 AM PST by Non-Sequitur
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To: Palter
You are full of it. Without the tenth amendment and the right to secede there is no United States. That is States united in a confederacy but retaining the right to secede.

If states do not have the right the right to secede, there is no right of a state to deny coercion and power of the Fed.

26 posted on 02/17/2010 9:31:23 AM PST by Vendome (Don't take life so seriously... You'll never live through it.)
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To: Palter

But isn’t the US Constitution a contract between the Federal Government and the States? Absolutely!
Isn’t the 10th amendment of the “Contract” the opt out provisions given to the states if the Federal Government violates their end of the contract? Absolutely.
Nobody in their right mind would ever enter into a contract that gives exclusive rights for one party to violate the provisions of the contract without recourse?
The States would have never ratified the Constitution without the opt out provision the 10th Amendment legally gives the
states.

The only thing the civil war decided about states rights is that the Union North had a financially superior fighting force and the southern states were beat into submission.
The use of force in upholding individual state rights is specific in the 10th Amendment against federal tyranny. The southern states exercised their option and surrendered.

HOWEVER NOW I don’t believe the rust belt now has the financial power to hold the individual states hostage if the states decide to form a different Republic. A 235 year old contract is still clearly a contract unless 35 states declare it null and void OR the Federal government breaks it’s end of the contract, which it clearly has.


27 posted on 02/17/2010 9:31:39 AM PST by o_zarkman44 (Obama is the ultimate LIE!)
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To: rwfromkansas
"I never understood the idea that somehow a war decides a constitutional question. Since when does OVERPOWERING the other side mean you are constitutionally correct?"

By using Scalia's logic, another civil war where the succeeding states won - would settle the question in the affirmative - yes it is legal.

28 posted on 02/17/2010 9:31:43 AM PST by uncommonsense (Liberals see what they believe; Conservatives believe what they see.)
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To: Palter

We didn’t have the right to leave the British Empire either, according to King George. Yet here we are. Ponder that for a moment.


29 posted on 02/17/2010 9:31:54 AM PST by Republic of Texas (Socialism Always Fails)
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To: Frantzie
They have the AIP party here in Alaska. It came about as a result of forced statehood by Feds. Believe it or not, more people wanted to remain a territory or commonwealth like P.R. or Philapines. They realized they would be taxed to death for state government as at the time no economic base in Ak. Feds brought in thousands of military, changed residency laws and threw the election; it was close too.

AIP wanted the choice voted on again. Now AIP has transformed into a super conservative party that keeps the Repubs up here honest, somewhat. AIP has had 2 Govs up here in the last 50 years.

Bottomline, we are now all culturally Americans and that prevents any separation.

30 posted on 02/17/2010 9:32:38 AM PST by Eska
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To: rwfromkansas
That makes no sense. The winner isn’t necessary right....they just happened to win.

No, it actually does make sense in the case of a revolution. If the rebels win, then there exists a new country based upon the idea that secession was justified in this case. The only people left standing are the founding fathers of the new country and they say so. If they lose, the definition of who is the "authority" remains unchanged, and of course that "authority" finds the rebellion UNjustified.

You hear the sayings "The winners write the history books" and "None dare call it treason [if it secedes]", which are kind of glib, but they're stating that same basic truth.

31 posted on 02/17/2010 9:34:26 AM PST by Still Thinking (Freedom is NOT a loophole!)
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To: rwfromkansas

I tend to agree that Scalia’s comment about the Civil War deciding it was wrong. I think his opinion that states do not have a Constitutional right to secede is correct though.

The Confederate States had no Constitutional right to secede. If they had won the war it wouldn’t have mattered, but it would have been a successful revolution as opposed to a vindication of their “constitutional right” to secede.

If it gets to the point where a state or states want to secede, I would presume there would be referendums in those states. If they passed, I would then imagine it would be up to the U.S. Congress to pass legislation allowing those states to secede, which the POTUS would then have to sign.

If such legislation was not passed, I would think the seceding states would then have to choose between remaining in the United States, or going to war to win independence. Of course, the mere threat of going to war might convince Congress to consent to the secession.

Alternatively the states might declare themselves free, refuse to abide by the laws of the United States, prevent their citizens from paying Federal taxes, take control of their borders, etc., and then put the onus on the Federal Government to either use force, or consent to the secession.

I hope it never comes to that.


32 posted on 02/17/2010 9:35:17 AM PST by Above My Pay Grade (Read My Palm: No More Socialism - Palin 2012)
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To: mlo
Then why did the US specifically act to readmit the confederate states to the union?

The didn't. Once the rebellious states complied with the requirements placed on them by the Reconstruction Acts they had there delegations readmitted to Congress and not the states readmitted to the Union.

If they had no right to secede, then they never really left.

Bingo.

Also, if Virginia never left the union then the creation of the state of West Virginia, against the will of Virginia, would have been unconstitutional.

No. An organization of Virginia legislators who remained loyal to the U.S., and who coincidentally mainly came from western Virginia, got themselves recognized by Congress as the legitimate legislature. They voted to partition and Congress approved.

33 posted on 02/17/2010 9:35:28 AM PST by Non-Sequitur
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To: nanetteclaret; piroque; manc; GOP_Raider; TenthAmendmentChampion; snuffy smiff; slow5poh; ...

Dixie ping


34 posted on 02/17/2010 9:35:44 AM PST by stainlessbanner
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To: bamahead

I take his statement with a grain of salt here.

He is given the choice between two answers, outside the courtroom, for a play. He is not a stupid man, and knows that every word he says will be looked at under a microscope.

If he answers No, like he did, some people on the far right will discuss what an idiot he is and that will be the end of it.

If he answers Yes, the incredible sh*tstorm that it would’ve started would be picked up by the MSM and blown so far out of proportion by this administration it is unimaginable how much crap he would have had to put up with.

He chose correctly.


35 posted on 02/17/2010 9:36:54 AM PST by Abathar (Proudly posting without reading the article carefully since 2004)
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To: Palter
I think passing a Constitutional amendment would be a legal means of succession; but good luck with THAT!

My dad used to say that succession was legal because they were “freely joined” States. I pointed out that ALL legal contracts must be “freely joined” by their adherents, yet they are not all similarly able to be dissolved by the unilateral actions of one of the signatories to that legal contract.

36 posted on 02/17/2010 9:37:20 AM PST by allmendream (Income is EARNED not distributed. So how could it be re-distributed?)
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To: Non-Sequitur

“One would have to assume that a socialist dictatorship would have done away with the Supreme Court when it did away with the rest of the Constitution, so your point is somewhat moot.”

Not really,, ever hear of the Supreme Court of the Soviet Union? A Socialist takeover here would almost certainly leave familiar things like the Supreme court intact as window dressing. FDR demonstrated this with his court packing scheme. They will leave it intact,,, as long as it falls into line. Socialist dictatorships are FAMOUS for having the form of the law. It makes them feel legitimate.
A US Supreme court controlled by the plotters,, Obama types,, would have a Hillary, an Ayers, A Maxine Waters, etc,, happily ruling in the favor of the Socialists. Don’t think Red Dawn,,think Obama and Nancy.

So it seems that your point is somewhat, shall we say, ,,,moot?


37 posted on 02/17/2010 9:39:16 AM PST by DesertRhino (Dogs earn the title of "man's best friend", Muslims hate dogs,,add that up.)
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To: Abathar

I tend to agree.

Interesting though that he states his thoughts that the Civil War ultimately decided the issue. Apparently he feels that’s a insurmountable strike against.


38 posted on 02/17/2010 9:40:12 AM PST by bamahead (Few men desire liberty; most men wish only for a just master. -- Sallust)
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To: Non-Sequitur
"An organization of Virginia legislators who remained loyal to the U.S., and who coincidentally mainly came from western Virginia, got themselves recognized by Congress as the legitimate legislature. They voted to partition and Congress approved."

Yes, but the Constitution specifically required the consent of Virginia. At least if Virginia was still a state.

"Section 3 - New States"

"New States may be admitted by the Congress into this Union; 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."


39 posted on 02/17/2010 9:40:20 AM PST by mlo
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To: rwfromkansas
That makes no sense. The winner isn’t necessary right....they just happened to win.

The idea is that winning allows the winner to say what's legal and what's not, because they're writing the laws. The American Revolution was certainly illegal under British law and the Founding Fathers had no doubt that they'd have been hanged had they lost.

Revolution is literally the destruction of the old social contract, putting people back in the "state of nature." From there, a new social contract and government should arise.

40 posted on 02/17/2010 9:40:40 AM PST by Bubba Ho-Tep ("More weight!"--Giles Corey)
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To: Republic of Texas

“We didn’t have the right to leave the British Empire either, according to King George. Yet here we are. Ponder that for a moment.”

Absolutely right.

When the existing government abuses and usurps, trending toward despotism, it’s time to break away. Or so says the U.S. declaration of independence.

I have the greatest respect for Scalia, and perhaps his was meant to be a more limited response than indicated in this report, but on its face his statement is incorrect.


41 posted on 02/17/2010 9:43:24 AM PST by SharpRightTurn (White, black, and red all over--America's affirmative action, metrosexual president.)
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To: Palter

The judge says we have no right to secede. OK, what happens when a state DOES secede. Does the federal government have the right to invade the state, kill the inhabitants and set up its own government?

That’s what happened in 1861. A more important question for today is, at what point, does the Constitution become a worthless document? For it does become so, the federal government has seceded from the states.

Might does not make right.


42 posted on 02/17/2010 9:44:03 AM PST by NTHockey (Rules of engagement #1: Take no prisoners)
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To: Bubba Ho-Tep

Scalia is probably right, exept that if session is the issue then the Constitution is not the document on point.

Does his might ring a bell ?

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation


43 posted on 02/17/2010 9:44:07 AM PST by Bidimus1
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To: uncommonsense
By using Scalia's logic, another civil war where the succeeding states won - would settle the question in the affirmative - yes it is legal.

That's exactly right. If the secessionists won, history would view their acts as legal. In the Civil War, the anti-secession forces prevailed, thus settling the legal question, till the next time.

44 posted on 02/17/2010 9:44:43 AM PST by Still Thinking (Freedom is NOT a loophole!)
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To: Palter

I’d like to see him do something to prevent from happening.


45 posted on 02/17/2010 9:44:54 AM PST by tom paine 2
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To: bamahead

I found that interesting too, almost like he was looking for an excuse not to have to get into the legal side of it at all. To me honest what he thinks is moot anyway, it will never come in front of his bench until after the battles are fought and blood is spilled.

I would much rather know how my Governor and Attorney General feels than him on this subject anyway.


46 posted on 02/17/2010 9:45:13 AM PST by Abathar (Proudly posting without reading the article carefully since 2004)
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To: Palter
Interesting. This is what the Virginia delegates had to say about ratification:

“We, the Delegates of the people of Virginia Do, in the name and behalf of the people of Virginia, declare and make known, that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensover the same shall be perverted to their injury or oppression and that every power granted thereby remains with them and at their will.”

47 posted on 02/17/2010 9:46:15 AM PST by Timocrat
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To: Bubba Ho-Tep

Scalia is probably right, exept that if session is the issue then the Constitution is not the document on point.

Does his might ring a bell ?

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation


48 posted on 02/17/2010 9:46:24 AM PST by Bidimus1
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To: Timocrat

Will McDonnell veto the senate bill denying Virginia’s right to drill for oil?

Come on Bob!


49 posted on 02/17/2010 9:47:49 AM PST by gathersnomoss (General George Patton had it right.)
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To: Palter
Examples of US Secession

Here are some other interesting points of discussion

  1. Abraham Lincoln endorsed 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 -- a most sacred right -- a right, which we hope and believe, is to liberate the world." (1848)
  2. The Declaration of Independence clearly states that governments are institutions that can be defined as “deriving their power from the consent of the governed.”
  3. Jefferson, author of the Declaration of Independence also stated: Whenever "any Form of Government becomes destructive" of the inalienable rights granted by the Creator, "it is the Right of the People to alter or abolish it, and to institute new Government."
  4. Alexander Stephens in his "A Constitutional View of the Late War Between the States," submitted, the central government, the common agent of the people of the states, is legitimate only so long as it exercises its delegated powers within the bounds established by the people through the Constitution.

50 posted on 02/17/2010 9:51:01 AM PST by stainlessbanner
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