Is Secession Legal?

Andersonh1

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jgoodguy said:
 The People of the US created the Consitution and only the people have the power to undo it.
Under this theory, how do we account for the fact that Rhode Island did not participate in the creation of the Constitution?
 

rittmeister

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Andersonh1 said:
jgoodguy said:
 The People of the US created the Consitution and only the people have the power to undo it.
Under this theory, how do we account for the fact that Rhode Island did not participate in the creation of the Constitution?
don't you think joining means okaying the constitution in existence?
 

Andersonh1

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rittmeister said:
Andersonh1 said:
jgoodguy said:
 The People of the US created the Consitution and only the people have the power to undo it.
Under this theory, how do we account for the fact that Rhode Island did not participate in the creation of the Constitution?
don't you think joining means okaying the constitution in existence?
It does, but that occurred after it was already in existence, and under pressure to ratify or be treated as a foreign country. That doesn't explain how "the people" created it when 1/13 of "the people" sat out the creation of the Constitution.
[hr]
The thing to remember about the preamble is that it is not law, unlike the rest of the Constitution. The preamble is a "mission statement" to use modern terminology, and it uses language that is more poetic than factual. It is also deceptive. The original language listed each state by name, but since they could not know who would ratify and who would not, the state names were removed and the far more broad and vague "we the people" left in place. 

They did not know how many among "we the people" would ultimately endorse the new Constitution, so to claim after the fact that the phrase means something that it does not is a poor foundation for a legal argument.
 

rittmeister

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Andersonh1 said:
rittmeister said:
Andersonh1 said:
jgoodguy said:
 The People of the US created the Consitution and only the people have the power to undo it.
Under this theory, how do we account for the fact that Rhode Island did not participate in the creation of the Constitution?
don't you think joining means okaying the constitution in existence?
It does, but that occurred after it was already in existence, and under pressure to ratify or be treated as a foreign country. That doesn't explain how "the people" created it when 1/13 of "the people" sat out the creation of the Constitution.
okay, i didn't know that - you got me. i simply assumed rhode island joined later (blame my european education on that one)


... but then, did the people of rhode island ever try to undo the constitution? <- that is a real question. i don't know that either.
 

jgoodguy

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Andersonh1 said:
jgoodguy said:
 The People of the US created the Consitution and only the people have the power to undo it.
Under this theory, how do we account for the fact that Rhode Island did not participate in the creation of the Constitution?
As far as I am concerned, the Civil War moted any discussion.  It was one people.  Had the secessionists won, at least in the CSA, the legal theory would be different something along the lines that the people of a State was the people.  

From the CSA Constituiton. 
[font=Arial, Verdana, sans-serif]Preamble[/font]

[font=Arial, Verdana, sans-serif]We, the people of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent federal government, establish justice, insure domestic tranquillity, and secure the blessings of liberty to ourselves and our posterity invoking the favor and guidance of Almighty God do ordain and establish this Constitution for the Confederate States of America.[/font]
Rawles and other early Constitutional writers tended to support the idea that people of a State as sovereigns.  However, that is irrelevant as the nationalists won the debate and the war.  US Supreme Court decisions were uniformly in favor of a consolidated nation.
 

Al Mackey

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Andersonh1 said:
[hr]
The thing to remember about the preamble is that it is not law, unlike the rest of the Constitution. The preamble is a "mission statement" to use modern terminology, and it uses language that is more poetic than factual. It is also deceptive. The original language listed each state by name, but since they could not know who would ratify and who would not, the state names were removed and the far more broad and vague "we the people" left in place. 

They did not know how many among "we the people" would ultimately endorse the new Constitution, so to claim after the fact that the phrase means something that it does not is a poor foundation for a legal argument.

That misapprehends the situation. First, about not having all the states at the Federal Convention: Unanimity was never a requirement. The majority has always spoken for "the People." 9/13 is the only requirement in the Constitution, and then as states were added their approval of the Constitution made their populations retroactively part of "the People."

Second, the Preamble as law: The Preamble most definitely is law. The Supreme Court of the United States has so ruled.

In Chisholm v. Georgia, (1793), Justice Wilson used the Preamble to anchor his decision. "[font=Georgia,]'The PEOPLE of the United States' are the first personages introduced. Who were those people? They were the citizens of thirteen States, each of which had a separate Constitution and Government, and all of which were connected together by articles of confederation. To the purposes of public strength and felicity, that confederacy was totally inadequate. A requisition on the several States terminated its Legislative authority: Executive or Judicial authority it had none. In order, therefore, to form a more perfect union, to establish justice, to ensure domestic tranquillity, to provide for common defence, and to secure the blessings of liberty, those people, among whom were the people of Georgia, ordained and established the present Constitution." [2 US 419, 463][/font]

[font=Georgia,]In Richfield Oil v. State Board of Equalization (1946), Justice Douglas quoted Chief Justice Taney in the Court's ruling: "[font=Verdana,]In expounding the Constitution of the United States, every word must have its due force, and appropriate meaning; for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added. The many discussions which have taken place upon the construction of the Constitution, have proved the correctness of this proposition; and shown the high talent, the caution, and the foresight of the illustrious men who framed it. Every word appears to have been weighed with the utmost deliberation, and its force and effect to have been fully understood. No word in the instrument, therefore, can be rejected as superfluous or unmeaning." [329 US 69, 77-78][/font][/font]

[font=Georgia,][font=Verdana,]Yale law professor Akhil Reed Amar, perhaps our country's top Constitutional scholar, wrote, [size=medium][font=Tahoma,]“The prominence of the Preamble also made it a perfect place to renounce the basic structure of the Articles. Although states would enter the Constitution as true sovereigns, they would not remain so after ratification. The formation of a ‘more perfect Union’ would itself end each state’s sovereign status and would prohibit future unilateral secession, in plain contrast to the decidedly less-than-perfect union under the Articles. True, the Preamble did not expressly proclaim that its new, more perfect union would be ‘perpetual’–and for good reason: Why borrow a word from the Articles of Confederation that did not quite mean what it said in that document, a word that was being thrust aside by the very act of constitution itself? Thus, the Constitution signaled its decisive break with the Articles’ regime of state sovereignty and false federal perpetuity in other ways.” [Akhil Reed Amar, [/font][font=Tahoma,]America’s Constitution: A Biography[/font][font=Tahoma,], p. 33][/font][/size][/font][/font]

[font=Georgia,][font=Verdana,][size=medium][font=Tahoma,][size=medium][font=Tahoma,]In White v. Hart (1871), the Court ruled, “The national Constitution was, as its preamble recites, ordained and established by the people of the United States. It created not a confederacy of states, but a government of individuals. It assumed that the government and the Union which it created, and the states which were incorporated into the Union, would be indestructible and perpetual, and as far as human means could accomplish such a work, it intended to make them so. The government of the nation and the government of the states are each alike absolute and independent of each other in their respective spheres of action, but the former is as much a part of the government of the people of each state, and as much entitled to their allegiance and obedience as their own local state governments — ‘[/font][font=Tahoma,]the Constitution of the United States and the laws made in pursuance thereof,’ being in all cases where they apply, the supreme law of the land[/font][font=Tahoma,]. For all the purposes of the national government, the people of the United States are an integral, and not a composite mass, and their unity and identity, in this view of the subject, are not affected by their segregation by state lines for the purposes of state government and local administration. [/font][font=Tahoma,]Considered in this connection, the states are organisms for the performance of their appropriate functions in the vital system of the larger polity, of which, in this aspect of the subject, they form a part, and which would perish if they were all stricken from existence or ceased to perform their allotted work. The doctrine of secession is a doctrine of treason, and practical secession is practical treason, seeking to give itself triumph by revolutionary violence. The late rebellion was without any element of right or sanction of law[/font][font=Tahoma,]. The duration and magnitude of the war did not change its character. In some respects it was not unlike the insurrection of a county or other municipal subdivision of territory against the state to which it belongs. In such cases, the state has inherently the right to use all the means necessary to put down the resistance to its authority and restore peace, order and obedience to law. If need be, it has the right also to call on the government of the Union for the requisite aid to that end. Whatever precautionary or penal measures the state may take when the insurrection is suppressed, the proposition would be a strange one to maintain that while it lasted, the county was not a part of the state, and hence was absolved from the duties, liabilities, and restrictions which would have been incumbent upon it if it had remained in its normal condition and relations. The power exercised in putting down the late rebellion is given expressly by the Constitution to Congress. That body made the laws, and the President executed them. The granted power carried with it not only the right to use the requisite means, but it reached further and carried with it also authority to guard against the renewal of the conflict and to remedy the evils arising from it insofar as that could be effected by appropriate legislation. At no time were the rebellious states out of the pale of the Union. Their rights under the Constitution were suspended, but not destroyed. Their constitutional duties and obligations were unaffected, and remained the same. A citizen is still a citizen, though guilty of crime and visited with punishment. His political rights may be put in abeyance or forfeited. The result depends upon the rule, as defined in the law, of the sovereign against whom he has offended. If he lose his rights, he escapes none of his disabilities and liabilities which before subsisted. Certainly he can have no new rights or immunities arising from his crime. These analogies of the county and the citizen are not inapplicable, by way of illustration, to the condition of the rebel states during their rebellion. The legislation of Congress shows that these were the views entertained by that department of the government. In the several acts admitting new states, the same formula substantially is used in all cases. It is that the state named ‘shall be and is hereby declared to be one of the United States of America, and is hereby admitted into the Union, upon an equal footing with the original states, in all respects whatsoever.’ ” [80 US 646, 650-652][/font][/font][/size][/size][/font][/font]

[font=Georgia,][font=Verdana,][size=medium][font=Tahoma,][size=medium][font=Tahoma,][size=medium][font=Tahoma,]In Martin v. Hunter’s Lessee (1816), the Court ruled, “The Constitution of the United States was ordained and established not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by ‘the people of the United States.’ There can be no doubt that it was competent to the people to invest the general government with all the powers which they might deem proper and necessary, to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority. As little doubt can there be that the people had a right to prohibit to the States the exercise of any powers which were, in their judgment, incompatible with the objects of the general compact, to make the powers of the State governments, in given cases, subordinate to those of the nation, or to reserve to themselves those sovereign authorities which they might not choose to delegate to either. The Constitution was not, therefore, necessarily carved out of existing State sovereignties, nor a surrender of powers already existing in State institutions, for the powers of the States depend upon their own Constitutions, and the people of every State had the right to modify and restrain them according to their own views of the policy or principle. On the other hand, it is perfectly clear that the sovereign powers vested in the State governments by their respective Constitutions remained unaltered and unimpaired except so far as they were granted to the Government of the United States.” [14 US 304, 324-325][/font][/font][/size][/font][/size][/size][/font][/font]

[font=Georgia,][font=Verdana,][size=medium][font=Tahoma,][size=medium][font=Tahoma,][size=medium][font=Tahoma,]The conclusion is inescapable. The Preamble is just as important as every other part of the Constitution, and the entire Constitution, including the Preamble, is supreme law of the land.[/font][/font][/size][/font][/size][/size][/font][/font]

[font=Georgia,][font=Verdana,][size=medium][font=Tahoma,][size=medium][font=Tahoma,][size=medium][font=Tahoma,]Third, the Preamble as "deceptive." It is not in any way deceptive. It was not meant for state governments to establish the Constitution, because the Constitution acts on individual people; therefore, the People of the United States must be the ones to establish it. As Professor Amar writes. "Although the ratification votes in the several states did not occur by direct statewide referenda, the various ratifying conventions did aim to represent 'the People' in a particularly emphatic way--more directly than ordinary legislatures. Taking their cue from the Preamble's bold 'We the People' language, several states waved standard voting restrictions and allowed a uniquely broad class of citizens to vote for ratification-convention delegates." [Akhil Reed Amar, The Constitution: A Biography, p. 7] He quotes Founding Father James Wilson, whom he called "America's leading lawyer" as saying: "This Constitution, proposed by [the Philadelphia draftsmen], claims no more than a production of the same nature would claim, flowing from a private pen. It is laid before the citizens of the United States, unfettered by restraint. ... By their fiat, it will become of value and authority; without it, it will never receive the character of authenticity and power." [Ibid.] [/font][/font][/size][/font][/size][/size][/font][/font]

[font=Georgia,][font=Verdana,][font=Tahoma,][font=Tahoma,][font=Tahoma,]James Madison wrote the Convention "[font=Arial, Verdana, sans-serif]planned and proposed a Constitution which is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed." [The Federalist No. 40] And who is that? Madison answers in the same essay, "[font=Arial, Verdana, sans-serif]They must have borne in mind, that as the plan to be framed and proposed was to be submitted TO THE PEOPLE THEMSELVES, the disapprobation of this supreme authority would destroy it forever; its approbation blot out antecedent errors and irregularities." [Ibid.] It was seen from the beginning that the Constitution would come from the People and thus ratified by the People. In the Federal Convention, Madison said, [size=medium]"[font=Arial, Verdana, sans-serif]Mr. MADISON[/font][font=Arial, Verdana, sans-serif] thought this provision essential. The articles of Confedn. themselves were defective in this respect, resting in many of the States on the Legislative sanction only. Hence in conflicts between acts of the States, and of Congs. especially where the former are of posterior date, and the decision is to be made by State tribunals, an uncertainty must necessarily prevail, or rather perhaps a certain decision in favor of the State authority. He suggested also that as far as the articles of Union were to be considered as a Treaty only of a particular sort, among the Governments of Independent States, the doctrine might be set up that a breach of any one article, by any of the parties, absolved the other parties from the whole obligation. For these reasons as well as others he thought it indispensable that the new Constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves." [James Madison, Notes on the Debates in the Federal Convention, June 5, 1787][/font][/size][/font][/font][/font][/font][/font][/font][/font]

[font=Georgia,][font=Verdana,][font=Tahoma,][font=Tahoma,][font=Tahoma,][font=Arial, Verdana, sans-serif][font=Arial, Verdana, sans-serif][font=Arial, Verdana, sans-serif][size=medium]Once again the conclusion is inescapable. The final wording reflects what had always been the intent of the Framers.[/font][/size][/font][/font][/font][/font][/font][/font][/font]
 

Jim Klag

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Andersonh1 said:
rittmeister said:
Andersonh1 said:
jgoodguy said:
 The People of the US created the Consitution and only the people have the power to undo it.
Under this theory, how do we account for the fact that Rhode Island did not participate in the creation of the Constitution?
don't you think joining means okaying the constitution in existence?
It does, but that occurred after it was already in existence, and under pressure to ratify or be treated as a foreign country. That doesn't explain how "the people" created it when 1/13 of "the people" sat out the creation of the Constitution.
[hr]
The thing to remember about the preamble is that it is not law, unlike the rest of the Constitution. The preamble is a "mission statement" to use modern terminology, and it uses language that is more poetic than factual. It is also deceptive. The original language listed each state by name, but since they could not know who would ratify and who would not, the state names were removed and the far more broad and vague "we the people" left in place. 

They did not know how many among "we the people" would ultimately endorse the new Constitution, so to claim after the fact that the phrase means something that it does not is a poor foundation for a legal argument.
Actually, about 33% of the people didn't vote in favor of ratification. The conventions were by no means unanimous. The Constitution provided for ratification to be final if the people of 9/13 of the states approved it. Instead of abstaining, Rhode Island could have voted NO and the Constitution would still have been ratified.
 

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Article 13 of Articles of this Confederation...

A link to the Articles of this Confederation,... http://hrlibrary.umn.edu/education/articlesofconfederation.html#art13

XIII.
Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.

And Whereas it hath pleased the Great Governor of the World to incline the hearts of the legislatures we respectively represent in Congress, to approve of, and to authorize us to ratify the said Articles of Confederation and perpetual Union. Know Ye that we the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said Articles of Confederation and perpetual Union, and all and singular the matters and things therein contained: And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions, which by the said Confederation are submitted to them. And that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual.

In Witness whereof we have hereunto set our hands in Congress. Done at Philadelphia in the State of Pennsylvania the ninth day of July in the Year of our Lord One Thousand Seven Hundred and Seventy-Eight, and in the Third Year of the independence of America.
 

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It's worth noting that in theory, secession could be legal if done under appropriate procedures. If there is a mechanism for admitting new states into the union beyond the original thirteen - and there is - then in theory, it would only be necessary to reverse that process. I suppose there could still be some debate over whether such a procedure applies to thirty-seven states or all fifty, of course.

Unilateral secession, on the other hand, is quite clearly unconstitutional. The federal government being like the state a creation of the people and not of the states themselves, unilateral secession not only exists outside the mandate of the Constitution, but is arguably a violation of the rights of the citizens of that state, who are constitutionally guaranteed a republican form of government.
 

jgoodguy

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It's worth noting that in theory, secession could be legal if done under appropriate procedures. If there is a mechanism for admitting new states into the union beyond the original thirteen - and there is - then in theory, it would only be necessary to reverse that process. I suppose there could still be some debate over whether such a procedure applies to thirty-seven states or all fifty, of course.

Unilateral secession, on the other hand, is quite clearly unconstitutional. The federal government being like the state a creation of the people and not of the states themselves, unilateral secession not only exists outside the mandate of the Constitution, but is arguably a violation of the rights of the citizens of that state, who are constitutionally guaranteed a republican form of government.
Secession is legal if and only if succeeds. If there is sufficient political force to do it, it will be done, the Constitution reinterpreted, ignored, or replaced with new laws written. It is wonderful to speculate on what can be done under say Texas v White, but in the end, like Texas v White and Reconstruction itself, the ways and means of secession will be ad hoc and the result of political power perhaps enforced by military might.
 

Jim Klag

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Your very first post was dead on @jgoodguy . Secession has no basis in the Constitution. The ex post facto arguments about the so-called "compact theory" were horse puckey. These Calhounite revisionists claimed that the colonies would never have joined the federal government if they thought they wouldn't be able to get out of it. Baloney. The arguments and debates over clause by clause plus the Bill of Rights show that if the framers believed the compact theory ruled, they would have put a mechanism into the Constitution for a state to leave. They put in specific mechanisms for changing or adding to the Constitution; how to elect, or get rid of, this or that officer of the government; how to add new states; how to declare war . . .etc. Not one word on how to leave the federal union. No one, in 1787, believed that states could secede unilaterally or that the states had any sovereignty whatever vis-à-vis the federal government.
 

jgoodguy

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Your very first post was dead on @jgoodguy . Secession has no basis in the Constitution. The ex post facto arguments about the so-called "compact theory" were horse puckey. These Calhounite revisionists claimed that the colonies would never have joined the federal government if they thought they wouldn't be able to get out of it. Baloney. The arguments and debates over clause by clause plus the Bill of Rights show that if the framers believed the compact theory ruled, they would have put a mechanism into the Constitution for a state to leave. They put in specific mechanisms for changing or adding to the Constitution; how to elect, or get rid of, this or that officer of the government; how to add new states; how to declare war . . .etc. Not one word on how to leave the federal union. No one, in 1787, believed that states could secede unilaterally or that the states had any sovereignty whatever vis-à-vis the federal government.
I believe that there was no unified belief in what the nature of the Union was in 1787. Lots of cans got kicked down the road and it was about the time of Andrew Jackson that the nationalists were finally ascendant. I'd have to dust off my notes, but at this moment, I look to the SCOTUS case Luther v Borden in which a young Taney ruled that the US Congress gets to decide which State government is valid a position he held at secession as the moment of unquestioned nationalist ascendancy.

Then there is what actually happened, the secessionists chose war over political or legal means. War decided it by choosing whose courts and legislatures would make the decisions on Union.
 

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I believe that there was no unified belief in what the nature of the Union was in 1787. Lots of cans got kicked down the road and it was about the time of Andrew Jackson that the nationalists were finally ascendant. I'd have to dust off my notes, but at this moment, I look to the SCOTUS case Luther v Borden in which a young Taney ruled that the US Congress gets to decide which State government is valid a position he held at secession as the moment of unquestioned nationalist ascendancy.

Then there is what actually happened, the secessionists chose war over political or legal means. War decided it by choosing whose courts and legislatures would make the decisions on Union.
I just think that had the framers thought the Union was to be anything other than perpetual, they would have included a mechanism for withdrawal in the text. The Articles had explicitly declared the Union perpetual. This perpetual Union was implied by the absence of such a mechanism in the Constitution.
 

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I just think that had the framers thought the Union was to be anything other than perpetual, they would have included a mechanism for withdrawal in the text. The Articles had explicitly declared the Union perpetual. This perpetual Union was implied by the absence of such a mechanism in the Constitution.
I believe the framers were in a panic mode to make a union and left details to the future. A good example is the miltia acts. The first one deferred a lot to the States. The 2nd one, after the experience of the Whisky rebellion, took that back in favor of a more centralized power. Later there was an insurrection act that allowed the central government to use government forced to suppress insurections without State militia.

The initial 'experiment' was a lot of State sovereignty, but the States kept on screwing up and lost it,
 
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