State Sovereignty Question

jgoodguy

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Paterson said:
If you would please just show me the explicit prohibition against the right of secession in the Constitution, I would appreciate it immensely. Thanks.
If you are unable to define secession please say so. I would appreciate it immensely
 

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Paterson said:
If you don't know what secession means, look it up.
If you are unable to articulate the definition of secession, then how do I know the one I find is the same as the one you claim.
 

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Pending a definition of secession lets consider this one. Link
the act of separating from a nation or state and becoming independent[/center]
Is the act of becoming independent prohibited by the Constitution?

Yes. Once this definition is accepted, then the prohibitions to secession are obvious. It is only by hiding the definition of secession that the prohibitions are also hidden. It is by hiding the obvious and concentrating on a single word without any relationship to what the word means; can any argument be mounted.​
 

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wbull1 said:
I find the argument that because something is not specifically prohibited it must, therefore, be permitted logically wanting. As a psychologist, I had an exercise in which parents tried to encourage a specific behavior in a child, which the parents chose, by saying "no" to everything that was not that desired behavior. The result was that the specific behavior was impossible to achieve. There are a zillion wrong alternatives to any desired behavior. You can gradually get a desired unspoken behavior by specifying what you want or by encouraging behaviors increasingly like what you want. Perhaps the founders of the country by writing that the Articles of Confederation and the Constitution were both "perpetual," they specified what they wanted — an unbroken union. Perhaps they did not feel the need to write you cannot set up a state as an individual separate country or a county or a city or an incorporated area or your neighborhood or your house and on and on and on because they realized it is impossible to list all the variations of what is not acceptable. Maybe they put what they wanted in positive terms. Perpetual meaning perpetual.
Good Points and I agree. The behavior of independent sovereignty for States is prohibited, the exact term does not have to be mentioned. I personally think of murder as a crime for an example. The statutes say something to the point that homicide is a prohibited activity, it does not say homicide by drowning, by poison, by ant bite, by smothering with feathers and so on. It is a word game with the point that because the word secession is not in the Constitution, then secession is permitted. As I posted earlier in this thread, had the word 'secession' appeared as a prohibited exit from the Constitution, the rebels of 1860 would have simply chosen another word.
 

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Greywolf said:
Understand your points. Just thinking here but after finally getting rid of the yolk of England.tossing that monkey off your back, so to speak, why would they ever sign up for something that they could eventually be in a similar situation again. Being an engineer it doesn't make logical sense. Could simply be that eventually the Lincolnian view .won out over the jeffersonian view, and right or wrong that may not have been the intent of the majority of the founding generation, or maybe it was.
I have had several threads where there was a conflict of States Rights vs Nationalists. First off the States Righters won with the AOC as the government. The result was a mess and with the States Righters in bad favor because of the mess they made, the nationalists won with the Consitution. There was a range of nationalism from loose to tight. The secessionists made a mess of things and the Lincoln view won. Later on, as problems arose and States Rights were unable to solve, then we see more power to the Federal Government. This is not unique to the US, maintaining a balance between effective government and tyranny is a constant struggle throughout history.
 

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CW Buff said:
Let's say, for a moment, that the states, which were fully sovereign prior to the Constitution, decided they wanted to create a union in which sovereignty is divided between the Union and the individual states. They were sovereign, so they could certainly do whatever they wished with their sovereignty. Sovereignty being what it is, the only legal transfer of sovereignty is a voluntary one, and the states being republican in nature, a majority of the people of each state would therefore have to approve the transfer of a portion of their sovereignty (that portion associated with the government powers enumerated in the to the Constitution) to the people of the US. In other words, the fact that "each state ratified for itself, and for itself only" says nothing about what the states were after they ratified the Constitution, but only what they were before.

You seem to like Madison, so here is one for you:

"Should all the states adopt it, it will be then a government established by the thirteen states of America, not through the intervention of the legislatures, but by the people at large." -- James Madison, VA state ratifying convention, June 6, 1788

"At large," meaning as a whole, a sovereign whole, e.g. "We the People of the United States of America." Again, the Constitution, and the state (the more perfect Union) and government (the Fed) it forms, can only be altered 1) as specifically provided for in the Constitution; or 2) as the sovereign people who ordained and established it wish, acting via the constitutional amendment process. The Constitution has a designated method for adding states to the Union, it has none for deducting them. That is therefore a matter to be decided by the sovereign people of the US, i.e., "the people" as referred to in the Tenth Amendment.

Here's another one for you:

"The Constitution requires an adoption in ." -- James Madison to Alexander Hamilton, July 20, 1788
Agree. For logistical reasons, The People of the United States voted by State because the infrastructure existed for that. The founders did not trust the legislatures to yield sovereignty because one legislative secession cannot bind another so they appealed to the ultimate sovereign, the people of that State. Because the People made the Constitutional Union, only the people can undo it.

Another interesting tidbit. It is not a new Union, but a consolidation of our Union.

The President of the Convention to the President of Congress, 17 September 1787

In all our deliberations on this subject we kept steadily in our view, that which appears to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existence, This important consideration, seriously and deeply impressed on our minds, led each State in the Convention to be less rigid on points of inferior magnitude, than might have been otherwise expected; and thus the Constitution, which we now present, is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable.
 

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CW Buff said:
Hi Greywolf. Got a little bout of insomnia too, do you?

My answer would be because of 1783-1787. After seeing how a union based on a treaty of confederation seemed to so clearly be a pending failure at maintaining the Union, why would they sign up for another union based on a treaty of confederation?

And the system they eventually settled on was only similar to the British system in a very general sense. Seems to me it was more different than it was similar. There would be no hereditary king, no parliament (a sovereign legislature in which about half as many people were represented in only one branch, the other branches being hereditary aristocrats), the system would remain a completely republican one, based on a written (proactive) constitution, with ample safeguards like separation of powers and multiple checks and balances, and representatives with limited terms of office, and the independent judiciary they had lacked in the British empire, and a more clearly defined (to the extent humanly possible) division of local/national authority. Given the conditions of the 1780s, why would they sit around and do nothing when their Union, which their success in the Revolution had depended on, and their continued independence and future prosperity would likely depend on, seemed in imminent threat of collapsing?

Also, consider this. Why add all those safety features if it remained a confederation based on a treaty in which the states retained full sovereignty and could book anytime they wanted to? That was 'a government of our choosing' v1.0. The problem 1783-1787 certainly wasn't that the confederation had prooven too overbearing and abusive, but that it had prooven to weak, inept, and incompetent. The solution ('a government of our choosing' v2.0) was to create a consolidated/indissoluble Union, and that's why they added all those ample safety features.
Lots of good points. Had the AOC of independent States worked, we would have that. It did not work. That is the ultimate argument against secession, we tried sovereign States, sovereignty the prerequisite for secession and it did not work. To save the Union, the people who created the States, the States did not create themselves, changed the government to eliminate sovereign States.
 

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leftyhunter said:
If a state may not form it's own military and sign a treaty with a foreign nations why does it make sense that there is a secessionist escape clause?
No case law supports your assertion that Secession is legal. There are antebellum cases prior to Texas v White that also address the issue that states are not sovereign entities. @jgoodguy has cited them in the past and can if he wishes list them again or send links. For example Luther v.Borden is often cited.
You and others have still not answered the question; if Secession is so obviously legal why didn't the secessionists appeal to the federal courts for protection instead if using violence to achieve Secession?
Leftyhunter
The argument is of the form of secession is not illegal therefore legal/permissible. US law being that not illegal is permissible is the framework for that. However there are problems with that, permissible is not the same as legal, because a legal activity has protections-for example putting a CBF in a window is legal because of first amendment protections, without that protection, a law enforcement or code enforcement officer could cite the owner of the window and order it removed. Secession has no protections. It is outside of the law. In the case of the 1860-61 secession, the secessionists performed illegal actions that had the color of insurrection or rebellion. When Lincoln dropped the hammer, the secessionists had no legal recourse. Had secession been constitutional, there would have been procedures in place to handle things like asset transfer before the fact.
 

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OpnCoronet said:
All of which proves to me, that the Constitution itself, prohibits Secession, as exercised in 1860-1861. Unilateral secession outside the authority and process of the Constitution, is by that fact alone, unconstitutional, i.e., unilateral secession would be Constitutional(Legal), only, if, it could be done without violating any of the clearly expressed powers of the Constitution.

Can the clearly expressed power in the Constitution be overruled by an unexpressed one, without adjudication? For instance, I would think, that any process of unilateral secession would violate Art. VI, Sec. 2. Can a State by its own volition, change the borders of the united States, fixed by Treat?
Our handy dandy tenth amendment has the answer.

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.[/center]
Any power delegated to the Federal Government belongs exclusively to the Federal Government.​
 

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leftyhunter said:
I am not a constitutional scholar nor are my Pro Confederate friends. It would appear that it would take a constitutional amendment to allow one or more states to secede from the United States the alternative being of course trial by combat.
To truly answer your question at least a majority of the population of a state would have to attempt to secede and then the Supreme Court would have to make the final decision on the legality of Secession and or just declare the matter was decided by Texas v. White.
Leftyhunter
IMHO secession is a political issue to be decided by Congress or an assembly of States. A president seems to have the power to declare the secession an insurrection or rebellion confirmed or denied by the Supreme Court and or Congress.
 

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leftyhunter said:
A point I make to my Pro Confederate friends when I ask them if Secession is legal why didn't the secessionists appeal to the federal courts for protection. So far they are unable to answer that question but hope springs eternal.
Leftyhunter
The short answer IMHO is that the secessionists were in a hurry to get out of Union before someone(s) said hey wait a minute so legal niceties were not on the agenda. There is nothing realpolitik wrong with that, when the fate of nations, cultures, and civilizations are at stake legal niceties are not going to hold things up. It is unique to argue after the fact about legal niceties.
 

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WJC said:
Additionally, suggesting that a SCOTUS opinion would have settled the crisis reflects a certain amount of presentism. We have grown accustomed to respecting SCOTUS decisions and considering them the 'final word' on any issue. This was certainly not the case in 1860/61 when no one respected the Supreme Court after what was viewed as a politicized and illogical ruling in Dred Scott v Sandford.
I agree. The problem is responding to the assertions in the present .
 

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GwilymT said:
Until someone points out to me that the constitution doesn’t specifically say that selling drugs is illegal, I will hold that I am completely within my constitutional rights to sell drugs.

Of course such a statement is absurd. Sections of the constitution clearly give both the Federal Government and States the ability to restrict such activities. Just because the Constitution doesn’t specifically forbid me, or a corporation, or a state, from doing something it does not follow that the Constitution allows such an action. The same applies to the notion of complete state sovereignty leading to a right to secession. It’s an absurd argument.

It is of notice that the seceding states, at the time of secession, weren’t appealing to a constitutional right of secession. They were arguing that the constitution was void and they were appealing to a natural right. If they thought that secession was a constitutional right, it follows that they would work within the constitution and the government to accomplish secession.
Good points. The arguments I have seen in the antebellum period promoting the compact theory the ultimate ideological basis for secession are natural rights arguments, not constitutional ones. The best constitutional argument for secession is that if a State that forms a nonrepublican State government, it is out of the Union. However, the Luther v Borden court case closed that off by ruling that the Federal government gets to recognize which State's government is Constitutional. We see this in Civil War Virginia when the Union recognizes a group of Unionists as the legitimate government of VA
 

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leftyhunter said:
I would argue the secessionists were well aware that Secession was illegal but decided that trial by combat was the only way to secede. True that they needed to strike first and hope the could demoralize the Unionists so that Secession would an accomplished fact.
It is not unreasonable that the secessionists were aware that Chief Justice Tan was against Secession and any legal argument in favor of Secession would eventually loose.
Leftyhunter
I would argue against that. The secessionists figured they were independent with all the attributes of independence including defending their turf. Generations of Southern political theorists had argued the Union was a compact, not a consolidated union.
 

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leftyhunter said:
A Supreme Court decision affirming the right of Secession may very well of settled the issue of Secession. We will never know and Taney' s unpublished opinion on the legality of Secession makes the possibility of a favorable decision on Secession remote.
It takes a strong centralized government to enforce an unpopular Supreme Court decision.
Leftyhunter
It takes a strong centralized government to suppress a determined rebellion. Roll the Taney SCOTUS dice and you may get secession is not Constitutional, but there is no Constitutional way to force the States back into the Union. IMHO that was true until Davis opened fire and hot war gave Lincoln the opportunity to declare the secessionists were insurrectionists in rebellion. The war officially was against rebels and not States.
 

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wbull1 said:
I disagree about "generations." Calhoun introduced the idea during the "nullification crises" about 30 years before the Civil War and South Carolina got no support from any other state. Missippi condemned the state's action. Almost nobody outside SC There is a long history of people in different parts of the grumbling, "We don't like [fill in the blank] federal action. We should secede." But it was never tested until the 1830s at which time it was seriously criticized. Secession as a serious idea only gained support gradually starting after the "nullification crisis." One generation, two at very most.
Some scholars think in much longer time spans for example:
The Road to Disunion, Vol. 1: Secessionists at Bay, 1776-1854
 

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wbull1 said:
I'm not sure this disagrees with me. The idea of secession has been along for a long time, which does not mean it was taken seriously by enough people to qualify as a serious alternative. The author apparently includes debates in state legislatures in 1860. If it was not thought worthy of debate until shortly before the start of the Civil War, that suggests to me it was seen as viable only a relatively short time before the war. Looking back from the 1860s to find justification would encourage viewing people could see earlier thoughts on secession as more prevalent and important than they were seen at the time they were presented.
Ideas have a long gestation period, they do not spring forth fully formed. Further discussion should be in a new thread.
 

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OpnCoronet said:
I am curious though. How did those theorists answer the decisions of the Federal Courts that the Constitution, was Not a compact at all.
Interesting question.
Several answers IMHO
First the understanding of the day was that it is unconstitutional to leave the Union, but unconstitutional to force States back into the Union. Even Lincoln was unsure how to continue until the attack on fort Sumter. Even after until the Prize Cases were ruled on, there was a question if Lincoln could respond as he did.

There is the idea that once you are out of the Union by whatever means you are no longer subject to the Constitution.

Until Texas v White, while there had been cases regarding Compact Theory, there was none regarding Compact Theory and Secession.

No one did a due diligence and reviewed the legal record for compact law cases or made the connection between secession and compact theory.

Everyone simply deferred to Calhoun that secession was legal.
 

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There were several works suggesting nullification and compact theory. If you are looking for a concise attack on the foundations of nationalism via the Constitution, these will disappoint. However, they are important as a source for alternatives that are part of the Southern antebellum experience to the nationalist view.

Thanks to @Andersonh1 for pointing them out to me.

A brief enquiry into the true nature and character of our federal government: being a review of Judge Story's commentaries on the Constitution of the United States, by Abel P. Upshur. 1840

View of the Constitution of the United States: With Selected Writings: St. George Tucker: (1803)

New Views of the Constitution of the United States Taylor, John. (1823).

Disquisition on Government John C Calhoun 1849
 
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