Stop right there. I don’t believe Mr. Rawle made any mention of ‘revolution.’ We are speaking English, are we not? Do specific words have specific meanings, in your opinion – or do they not?
...without offering to the examination of the decent opinion of mankind arguments resolving to the laws of nature and of nature's God.
Tell us, my friend: shall we be governed by law, or by “decent opinion?” Shall our government be bound by written, constitutional law, or by “the laws of nature and of nature's God?” What say you?
The text you and your allies cite is tiresomely familiar, and fails to make the distinction between the alleged legal right to secession and the genuine natural right to revolution.
Once again you are conflating “secession” and “revolution.” To justify that position, you must first prove secession unconstitutional. Have at it...
The relevent distinction is between unilateral withdrawal from the compact under terms of the compact (called "secession" and absent from the Constitution and all genuine political communities)...
So, you disagree that all “powers not delegated...nor prohibited....are reserved?” By all means, assist us: show us precisely where the Constitution ‘delegates’ or ‘prohibits’ the right of secession.
...and withdrawal from the compact according to the natural right of self-government, i.e, of revolution.
And we are, by now, quite familiar with the assumption underlying your argument: ‘secession = revolution.’ Unfortunately for you, the equation is dependent upon an exclusion of secession from protection under the specific terms of the Tenth Amendment. And for secession to be excluded from such reservation, it must necessarily have been previously “delegated” or “prohibited” – which it was not.
The simple question is whether there was any national sovereignty at all. If there was, there existed a national political community, an act of a national people, and accordingly an arrangement that only an act of the national people could terminate legitimately.
“National sovereignty?” Perhaps this will help:
“Sovereignty is the highest degree of political power, and the establishment of a form of government, the highest proof which can be given of its existence. The states could not have reserved any rights by the articles of their union, if they had not been sovereign, because they could have no rights, unless they flowed from that source. In the creation of the federal government, the states exercised the highest act of sovereignty, and they may, if they please, repeat the proof of their sovereignty, by its annihilation. But the union possesses no innate sovereignty, like the states; it was not self-constituted; it is conventional, and of course subordinate to the sovereignties by which it was formed. Could the states have imagined, when they entered into a union, and retained the power of diminishing, extending, or destroying the powers of the federal government, that they who "created and could destroy," might have this maxim turned upon themselves, by their own creature; and that this misapplication of words was able both to deprive them of sovereignty, and bestow it upon a union subordinate to their will, even for existence? I have no idea of a sovereignty constituted upon better ground than that of each state, nor of one which can be pretended to on worse, than that claimed for the federal government, or some portion of it. Conquest or force would give a much better title to sovereignty, than a limited deputation or delegation of authority. The deputations by sovereignties, far from being considered as killing the sovereignties from which they have derived limited powers, are evidences of their existence; and leagues between states demonstrate their vitality. The sovereignties which imposed the limitations upon the federal government, far from supposing that they perished by the exercise of a part of their faculties, were vindicated, by reserving powers in which their deputy, the federal government, could not participate; and the usual right of sovereigns to alter or revoke its commissions.”
John Taylor of Caroline, New Views of the Constitution of the United States, 1823
“I have no idea of a sovereignty constituted upon...worse [ground], than that claimed for the federal government.” Please note the title of Mr. Taylor’s book: views such as yours were considered “new” in 1823 – they were not the views of those who ratified the Constitution three decades earlier.
The Constitution includes a procedure for amendment, which would be a legal method to accomplish so fundamental a change as the departure of a component part.
Which clause, exactly, would you amend? Don’t be bashful: tell us which article, section, and clause specifically prohibits secession.
If you deny that there was any national sovereignty, then I do not dispute the legal right to secession. I think this much the strongest ground for secessionists, albeit still completely false. At least it avoids the incoherence of the claim that it is legitimate for a portion of a compacting community to withdraw from the compact at pleasure.
By all means, refute Mr. Taylor’s arguments. Convince us that “the powers delegated by the proposed Constitution to the federal government are” NOT “few and defined.” Prove, in the face of the Tenth Amendment, that “those which are to remain in the State governments are” NOT “numerous and indefinite.” Quote the records of the constitutional convention, and demonstrate that a national rather than a federal government was to be established by the Constitution. It is your argument, my friend, that is “completely false.”
But, pace Professor Rawles, the argument that a state can simply secede from a genuine national sovereignty is incoherent.
“National sovereignty?” Mr. Hamilton proposed the establishment of “national sovereignty” at the constitutional convention – it was considered and rejected. Mr. Randolph also proposed a “national sovereignty” – his plan was also considered, and also rejected. In the words of John Taylor:
“Now [the States] are told that the devil, thus repeatedly exorcised, still remains in the church.”
Go to the records of the convention – show us precisely where and when a “national sovereignty” was established.
It is particularly incoherent if based on the 10th Amendment -- because if a person is a citizen of both the United States and, say, Virginia, he certainly, by the 10th Amendment, retains as much right to retain his citizenship on the United States as the state of Virginia retains the power to leave the United States. If there is any genuine, even if partial, national sovereignty, then the citizens of the states retain the right to remain members of that national community and no power reserved to the States can override this power.
“He certainly, by the 10th Amendment, retains as much right to retain his citizenship on the United States?” Not “by the 10th Amendment,” my friend: even our current high court justices won’t buy that one. The Tenth Amendment reserves powers to the people of the several States, not to “the undifferentiated people of the Nation as a whole:”
“...(W)here the Constitution is silent about the exercise of a particular power-that is, where the Constitution does not speak either expressly or by necessary implication-the Federal Government lacks that power and the States enjoy it.
”These basic principles are enshrined in the Tenth Amendment, which declares that all powers neither delegated to the Federal Government nor prohibited to the States -are reserved to the States respectively, or to the people.- ... the Amendment does make clear that powers reside at the state level except where the Constitution removes them from that level. All powers that the Constitution neither delegates to the Federal Government nor prohibits to the States are controlled by the people of each State.
”To be sure, when the Tenth Amendment uses the phrase -the people,- it does not specify whether it is referring to the people of each State or the people of the Nation as a whole. But the latter interpretation would make the Amendment pointless: there would have been no reason to provide that where the Constitution is silent about whether a particular power resides at the state level, it might or might not do so. In addition, it would make no sense to speak of powers as being reserved to the undifferentiated people of the Nation as a whole, because the Constitution does not contemplate that those people will either exercise power or delegate it. The Constitution simply does not recognize any mechanism for action by the undifferentiated people of the Nation.”
Mr. Justice Clarence Thomas, U.S. Term Limits, Inc. v. Thornton, 1995
Note the language of the Tenth Amendment: powers are “reserved,” indicating that they remain exactly where they were. There was no ‘aggregate’ people of the United States at the time of the ratification – they could not, therefore, ‘reserve’ anything. Your argument is specious.
So there's your argument. And please notice that it depends on the premise that there is some national sovereignty.
You seem to be confused: it is your argument that is entirely dependent upon the destruction of State sovereignty, and the ‘construction’ of a national sovereignty.
If you deny this premise, then please let's have that discussion, and not the implausible debate over whether a compact can be annulled at pleasure by any of its participants, particularly at the expense of others.
Once again, you are confused: the exercise of a reserved power or right hardly constitutes an ‘annulment:’ your argument presupposes that the exercise of such power or right is prohibited by the compact. In other words, you are presenting a ‘circular argument:’ secession is unconstitutional because secession is unconstitutional. Congratulations.
If Professor Rawles has any texts to cite on this issue, beyond the ones so frequently posted already, please present them.
Perhaps you could begin with the ratification documents of New York, Rhode Island , and Virginia, each of which explicitly reserves the right of secession. You may also wish to review St. George Tucker’s discussion of the 12th proposed amendment (our Tenth Amendment) in his Blackstone’s Commentaries of 1803. If you are unable to locate the documents in question, I will provide quotes – as I have on numerous occasions in the past.
And, by the way, Harvard is . . . . a pit of deconstructionist, anti-intellectual, passion-driven mind-goop. And I suspect we probably agree about that.
Actually, I would suggest that ‘facts are facts.’ It matters not to me whether they are presented by a Harvard professor such as Dr. William Gienapp – or a professor of law at Yale, such as Dr. Robert Bork.
;>)
“...(W)here the Constitution is silent about the exercise of a particular power-that is, where the Constitution does not speak either expressly or by necessary implication-the Federal Government lacks that power and the States enjoy it.
What is the universe of "powers" here contemplated? For example, are there any "powers" which, although not granted to the federal government, the states cannot have? What does "power" mean here?
”These basic principles are enshrined in the Tenth Amendment, which declares that all powers neither delegated to the Federal Government nor prohibited to the States -are reserved to the States respectively, or to the people.- ... the Amendment does make clear that powers reside at the state level except where the Constitution removes them from that level. All powers that the Constitution neither delegates to the Federal Government nor prohibits to the States are controlled by the people of each State.
Same question of this one. What is meant by "power," and are there any "powers" at all which are not "controlled" by the federal government, the states, or the people of the state? I ahve previously, in trying to understand what people think about this, asked if such things as the power to murder or cannabilize are included. Assuming they are not, please help me define the kind of "power" that is reserved, delegated, divided up, etc., in these texts.
”To be sure, when the Tenth Amendment uses the phrase -the people,- it does not specify whether it is referring to the people of each State or the people of the Nation as a whole. But the latter interpretation would make the Amendment pointless: there would have been no reason to provide that where the Constitution is silent about whether a particular power resides at the state level, it might or might not do so. In addition, it would make no sense to speak of powers as being reserved to the undifferentiated people of the Nation as a whole, because the Constitution does not contemplate that those people will either exercise power or delegate it. The Constitution simply does not recognize any mechanism for action by the undifferentiated people of the Nation.”
You are certainly right that Justice Thomas does not read this amendment as reserving powers to individual citizens of the nation. But this last sentence is interesting -- it denies a Constitutional "mechanism" by which the "undifferentiated people of the Nation" might act -- and by "act" I believe he means "act politically." It seems to me significant that he is apparently assuming that there is some such "undifferentiated people" of a "Nation," but that the political order established by this people does not include exercise of political power by that people directly. Wouldn't this be seen in the absence of, for example, the direct election of a president, or of any mechanism for national referendum?
By implication, then, the two other bearers of political power referred to would be the states -- meaning the constituted governments of the states, I presume -- and the united body of citizens of particular states. That is, for example, the government of California or the people of California in a referendum.
I think you are right -- although not for the reasons you have in mind, I am fairly sure -- that Justice Thomas does not see in the 10th Amendment a reservation of what are called "rights," but of political powers, and that this distinction corresponds to the distinction between individuals (the only bearers of rights) and political bodies, (apparently, the bearers, or exercisers, of these things called "powers.") Governments, or sovereign bodies of people, can exercise "powers." And he points out that the body of people (I understand that you dispute this, but I am interpreting Justice Thomas at the moment) of the "Nation" does not exercise political power.
What I was thinking of as the right of a citizen of the United States not to have his fundamental political arrangements altered by the state government or state people to which he also belongs is not properly understood as "reserved" to individuals by this Amendment, on this reading, which seems true to me.
I think this does not bear on the question of whether there is sovereignty at the national level, however -- which Justice Thomas in this very quotation implies when he speaks of the "Nation as a whole" and its "Government."
I'll repeat my simple little argument (which I think you grant, actually) on this and then go to bed. If there is any genuine sovereignty at the national level -- albeit incomplete sovereignty because of the remainder of sovereignty's natural whole being possessed by the states -- then there exists an underlying compact of the whole which is governed by that partially sovereign government. But compacts cannot be unilaterally withdrawn from by individual components, or even clumps of components. Only by something reasonably understood as the act of the compacting community can the compact be modified.
The departure of states from the Union, like the arrival of new ones, pertains the community of the whole. Additions to that whole are accomplished within the Constitution by the procedures for the admission of new states. There exists no such mechanism for the subtraction of states, which is equally necessarily an action of the whole.
I am quite happy if we can agree that on the question whether there exists in any real sense a national political community - a "Nation" or "Country" -- will depend the question whether participants in the federal organization can withdraw unilaterally.
You have cited several authorities, chiefly Taylor, who say no to this question. I think they are wrong, and that at the heart of the denial is a denial of the possibility of divided or qualified sovereignty. Hamilton, I presume, was seeking greater or complete national sovereignty, not just "some" sovereignty. I want to go back to the Federalist papers and see more clearly what they thought on this question -- but if there is one theme that leaps out of that text, it is that what is at stake in the ratification question is not whether an effective league of sovereign states is a good idea, but whether national union will receive a government adequate to it, for without such a government, the national union must be abandoned. That is not the kind of talk that league-makers use, but founders of national states.