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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: 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: 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: FateAmenableToChange
As a matter of law, I also strongly suspect that Scalia is correct. I think he is likewise due a good deal of deference on the subject given his reputation for intellectual rigor.

However, there is a difference between right and law, as our Declaration of Independence makes plain in the context of providing a logical and practical justification for the American revolt against British rule:

"...governments are instituted among men, deriving their just powers from the consent of the governed." (But) "whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government..."

At the same time: "prudence, indeed, will dictate that governments long established should not be changed for light and transient causes..."

"But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security."

That sounds very much to me like an expression of natural law, but not a deterministic one in the sense that the validity of those propositions depend solely upon their successful achievement.

Rather, the words above are intended to express an objective standard for the maintenance of self-governance under duress, which may be summarized in this way:

People have a natural right to be free and choose their own form of political organization, significant alterations to which ought not be made easily or due to temporary circumstances. But if their government demonstrates a pattern of behavior for which the sole rational explanation is a desire to impose tyranny, the people then have both the right and a duty to act to establish a new government.
By the standard expressed above, in both original and derivative forms, I think we have as yet fallen far short of the standard for revolution. The right of states as sovereign entities in our Federal Republic to secede from the Federal government is a much broader matter. I think the standard ought to be something higher than a majority vote of state legislatures and for something truly immutable in the absence of withdrawal from the Union. After all, it really didn't work out too well the last time.
64 posted on 02/17/2010 10:14:04 AM PST by andy58-in-nh (America does not need to be organized: it needs to be liberated.)
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To: FateAmenableToChange
Apologies. Since I was referencing your earlier post I meant to include you in my REPLY.
96 posted on 02/17/2010 11:51:41 AM PST by ForGod'sSake (You have two choices and two choices only: SUBMIT or RESIST with everything you've got!)
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To: FateAmenableToChange; Slings and Arrows; Markos33; GSP.FAN
Scalia - ""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.") Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit. I am sure that poetic license can overcome all that -- but you do not need legal advice for that. Good luck with your screenplay."

FateAmenableToChange - " 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.

Chairman Mao - "Political power grows from the barrel of a gun."

Let me be crystal clear - I hate Commies! But I like the succinct way The Chairman put it.


129 posted on 02/17/2010 12:49:38 PM PST by shibumi (Health and well being for S. and L. - in Jesus name we pray!)
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To: FateAmenableToChange
Secession and Revolution are similar but not identical. So it's not by calling up John Locke's Natural Law doctrine that Secession is made a right, it is by calling up the Constitution (and perhaps Dec. of Independence) themselves.

(The latter, by the way does codify the DUTY not right, or people to overthrow tyrannical governemnts, but I'm back to revolution when I want to stay on secession).

The question of secession is much simpler: is the Constitution an irrevocable contract, regardless of what anyone does.

Scalia's answer does not satisfy. It is simply: Might Makes Right. That's not a legal answer.

The answer is to be found in a careful study of the Constitution and the documents surrounding its creation. There are several books that explore this:

One Nation, Indivisible? A Study of Secession and the Constitution (Paperback) ~ Robert, F. Hawes (Author)

There is also the historical view, ie: what was said the first time. Like this book:

Constitutional History Secession, A (Hardcover) ~ John Graham (Author), Donald Livingston (Foreword)

When in the Course of Human Events: Arguing the Case for Southern Secession (Paperback) ~ Charles Adams (Author)

There is even a "how to" guide for Vermont.

I imagine Scalia would have a better answer if it came up before the court, as it well may. This was a short sweet note to someone.

173 posted on 02/17/2010 2:54:56 PM PST by Jack Black
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To: FateAmenableToChange

Bump. Good information.


198 posted on 02/17/2010 4:20:49 PM PST by BuckeyeTexan (Integrity, Honesty, Character, & Loyalty still matter)
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To: FateAmenableToChange

In this type of discusson people need to be precise in their choice of words, as the founders were in their choice of words in the Constition.

Per John Locck, PERSONS have the right to revolution. That is quite different from GOVERNMENTS having such a right. Governments (state, federal and world) do not have rights. They have powers.

The proper way to phrase the question= is whether Maine (or any government) has the POWER to do what it wants.


208 posted on 02/17/2010 5:17:51 PM PST by spintreebob
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