10th Amendment usage for secession

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#1
The 10th. Amendment says:
"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."

I really fail to understand where people get the idea that the 10th Amendment allows for secession?
I see this on CWTBB, on FB, and other sites, but where do they get where it's allowed FROM the 10th Amendment? Is this a "talking point" taught somewhere, a "vague" notion that's used because it can't be proven/disproven somehow?

Kevin Dally
 

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#3
Simple enough: Because secession is not mentioned in the Constitution, it must be one of those powers reserved to the States.
One sentence looks logical enough.
And needs many sentences to rebut
You are absolutely correct when you state that secession is not mentioned in the U.S. Constitution. According to Justice, Antonin Scalia, the Civil War proved that the right of secession is not constitutional. According to an October 31, 2006 letter, Scalia states that he "finds it difficult to envision who the parties to this type of lawsuit would be. Is the State suing the United States for a declaratory judgment? Also, the United States cannot be sued without its consent, and it has not consented to this sort of suit." However, I have a question: Would it be possible for a State in it's constitution to reserve the right to secede through the principles of nullification and or interposition? David.
 

jgoodguy

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#5
You are absolutely correct when you state that secession is not mentioned in the U.S. Constitution. According to Justice, Antonin Scalia, the Civil War proved that the right of secession is not constitutional. According to an October 31, 2006 letter, Scalia states that he "finds it difficult to envision who the parties to this type of lawsuit would be. Is the State suing the United States for a declaratory judgment? Also, the United States cannot be sued without its consent, and it has not consented to this sort of suit." However, I have a question: Would it be possible for a State in it's constitution to reserve the right to secede through the principles of nullification and or interposition? David.
Lets first look at the 10th

"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."

There are 2 court decisions that suggest that the Supreme Court will not get into political questions, Luther v Borden and Texas v White. Because secession is a political question, not a legal one and is to be decided by the States(Texas v White) SCOTUS is not likely to get involved.

The two bolded are where folks get into trouble because they do not see 'secession', 'nullification' or 'imposition' in the Constitution.
If we assume that secession is independent sovereignty, we find that independent sovereignty is prohibited to the States is prohibited to the States in the Consitution.

SECTION 10
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.​
No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.​
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.​
There are also many SCOTUS decisions that rule nullification and imposition are not Constitutional.
 

jgoodguy

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#6
Where are all those posters here on CWTBB, who USE the 10th Amendment to prove secession was legal? This is your chance to get in and prove your point, have at it!
Opportunity is knocking.

Kevin Dally
Most of the ardent supporters have come and gone. You may be asking ghosts to respond.
Most of the assertions get crushed between the Scylla and Charybdis of delegated powers to the Federal government and powers prohibited to the States.
 

Rebforever

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#7
The 10th. Amendment says:
"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."

I really fail to understand where people get the idea that the 10th Amendment allows for secession?
I see this on CWTBB, on FB, and other sites, but where do they get where it's allowed FROM the 10th Amendment? Is this a "talking point" taught somewhere, a "vague" notion that's used because it can't be proven/disproven somehow?

Kevin Dally
Probably because there is no law against it up until 1865..
 
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#9
I can give you some contemporary views of what the 10th amendment meant with regard to sovereignty and secession:

"Pennsylvania guarded her sovereignty by insisting upon the following amendment: "All the rights of sovereignty which are not, by the said Constitution, expressly and plainly vested in the Congress, shall be deemed to remain with, and shall be exercised by the several States in the Union." The result of this jealousy on the part of the States was the adoption of the 10th amendment to the Constitution of the United States as follows: "The powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States, or to the people."

It is thus clear beyond doubt, that the States not only had no intention of merging their sovereignty in the new government they were forming, but that they took special pains to notify each other, as well as their common agent, of the fact." - chapter 2 of "Memoirs of Service Afloat, During the War Between the States" by Raphael Semmes


"Senators, the Constitution is a compact. It contains all our obligations and duties of the Federal Government. I am content, and have ever been content, to sustain it. While I doubt its perfection; while I do not believe it was a good compact; and while I never saw the day that I would have voted for it as a proposition de novo, yet I am bound to it by oath and by that common prudence which would induce men to abide by established forms, rather than to rush into unknown dangers. I have given to it, and intend to give to it, unfaltering support and alliegiance; but I choose to put that allegiance on the true ground, not on the false idea that anybody's blood was shed for it. I say that the Constitution is the whole compact. All the obligations, all the chains that fetter the limbs of my people are nominated in the bond, and they wisely excluded any conclusion against them, by declaring that the powers not granted by the Constitution to the United States, or forbidden by it to the States, belonged to the States respectively or the people."
------

"Perhaps not; but the Constitution is not the place to look for State rights. If that right belongs to Independent States, and they did not cede it to the Federal Government, it is reserved to the States or to the people. " - Robert Toombs, farewell speech to the Senate
 

jgoodguy

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#10
Probably because there is no law against it up until 1865..
Not true my friend. Section 10 of the US Constitution was enacted about eighty years before the ACW.
Leftyhunter
There is no Constitutional protection for secession nor a provision for secession. Section 10 prohibits the attributes of independent sovereignty for States. Without protection or provision, secession is outside of the law-there does not have to be any law prohibiting secession; it is outside of the protection of the law and therefore laws prohibiting secession and rebellion take effect at the discretion of the President.

I am unaware of any laws that specifically mention the word 'secession' but those laws against insurrection and rebellion are sufficient and the word 'secession' a mere moot distraction.
 

jgoodguy

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#11
I can give you some contemporary views of what the 10th amendment meant with regard to sovereignty and secession:

"Pennsylvania guarded her sovereignty by insisting upon the following amendment: "All the rights of sovereignty which are not, by the said Constitution, expressly and plainly vested in the Congress, shall be deemed to remain with, and shall be exercised by the several States in the Union." The result of this jealousy on the part of the States was the adoption of the 10th amendment to the Constitution of the United States as follows: "The powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States, or to the people."

It is thus clear beyond doubt, that the States not only had no intention of merging their sovereignty in the new government they were forming, but that they took special pains to notify each other, as well as their common agent, of the fact." - chapter 2 of "Memoirs of Service Afloat, During the War Between the States" by Raphael Semmes


"Senators, the Constitution is a compact. It contains all our obligations and duties of the Federal Government. I am content, and have ever been content, to sustain it. While I doubt its perfection; while I do not believe it was a good compact; and while I never saw the day that I would have voted for it as a proposition de novo, yet I am bound to it by oath and by that common prudence which would induce men to abide by established forms, rather than to rush into unknown dangers. I have given to it, and intend to give to it, unfaltering support and alliegiance; but I choose to put that allegiance on the true ground, not on the false idea that anybody's blood was shed for it. I say that the Constitution is the whole compact. All the obligations, all the chains that fetter the limbs of my people are nominated in the bond, and they wisely excluded any conclusion against them, by declaring that the powers not granted by the Constitution to the United States, or forbidden by it to the States, belonged to the States respectively or the people."
------

"Perhaps not; but the Constitution is not the place to look for State rights. If that right belongs to Independent States, and they did not cede it to the Federal Government, it is reserved to the States or to the people. " - Robert Toombs, farewell speech to the Senate
I recall a thread about the use of the 10th in secession conventions or otherwise by secessionists. Do you recall it also?
 
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#13
From that same thread, posted by Lnwlf as an example of contemporary thinking:

"By a Constitution, the people of a State delegate the power of representing their sovereignty; but they do not renounce the sovereignty or transfer it. A Constitution makes agents to exercise powers of government, and limits and defines the spheres and powers of these agents, the servants of the people. It does not transfer the sovereignty from the people to their agents, making the agent to be sovereign, and the former sovereign to be the subject. On the contrary, every constitutional government announces that all powers are derived from the will of the people, and all powers not granted by the people are reserved. The agent cannot have more powers than the principal. The creature cannot be greater than the creator. Let us look at the ratifying part of the Constitution of the United States. It was proposed that when nine States should agree that this instrument should be part of their constitution, or organic law; then this general agent should be organized and go into force. The Congress of the old confederation, whom this new plan proposed to supplant, were friendly to the submission of the new plan; but mark the logic,-the plan provided for the extinction of the old confederation by secession. The Congress favored it, and the Conventions of the States were called to consider the secession from the Confederation and the adoption of the new constitution. Nine States peacefully seceded in 1787 and 1758. Two States—Rhode Island and North Carolina-lingered a year and a half before they joined the new Confederation: North Carolina not joining until satisfactory amendments were made to the Constitution, and Rhode Island joining upon conditions. Notwithstanding the 12th (13th) article of confederation says, the articles shall be inviolably preserved and the Union be perpetual, and no alteration shall be hereafter made unless it be confirmed by the Legislature of every State, yet there has never been a question that the States could not rightfully secede from the old Confederation, although its articles of constitution were entitled “articles of confederation and perpetual union,” and in the new Constitution as amended, the words, reserving to the States all powers not granted, are as clear as in the Articles of Confederation (see Art. 10): “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.” It follows, then, that if secession was no offence in 1788 against the old Confederation, unless words granting away the right to secede are found in the new Constitution, or words prohibiting secession to the States, then the right is reserved intact by the several States. We find no such grant nor such prohibition. The right of secession remains a part of the sovereignty of the respective States, just as perfectly as when they last exercised it in 1788–9 in order to adopt this present Constitution."

https://civilwartalk.com/threads/co...he-us-constitution.124660/page-6#post-1336521
 
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#15
Lets first look at the 10th

"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."

There are 2 court decisions that suggest that the Supreme Court will not get into political questions, Luther v Borden and Texas v White. Because secession is a political question, not a legal one and is to be decided by the States(Texas v White) SCOTUS is not likely to get involved.

The two bolded are where folks get into trouble because they do not see 'secession', 'nullification' or 'imposition' in the Constitution.
If we assume that secession is independent sovereignty, we find that independent sovereignty is prohibited to the States is prohibited to the States in the Consitution.

SECTION 10
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.​
No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.​
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.​
There are also many SCOTUS decisions that rule nullification and imposition are not Constitutional.
Thanks for the information and explanation. I wholeheartedly concur. David.
 

CWDF

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#16
As an attorney and historian I often get this question. Here is my usual answer:

American law is based on English common law. One of the basic tenants of the common law is that no party to an agreement can unilaterally change or void the agreement. You cannot do it in a contract, partnership or marriage unless there is a specific provision in the agreement or procedure set forth in the law. The founding fathers were mostly lawyers and businessmen who were familiar with the common law so that they knew what they were agreeing to by adopting the Constitution. There being no specific provision in the Constitution, which is also the supreme law, the union was meant to be perpetual and, therefore, secession is illegal.

Unilateral secession by a state was not contemplated by the founding fathers. If it was there would have been no need for the Federalist Papers, essentially a series of “editorials” arguing for the adoption of the Constitution. If the union was not meant to be perpetual and unilateral secession was possible then only a few words would have been needed to convince people that it should be adopted – “You’re worried about the Constitution? Adopt it, try it for a few years, if it’s not working, just secede from the union.” No one said that because it was not the intent.

James Madison, considered to be the father of the Constitution, even said during the nullification crisis, “It is high time that the claim to secede at will should be put down by the public opinion.”

In my opinion, there are only two ways for a state to legally secede: (1) all of the other states would have to agree to the break up of the union (much like India getting it independence from the U.K.) or the state declares its independence, fights a war, WINS the war, and gets the other states to sign a treaty recognizing its independence, thus, the illegal rebellion becomes a legal revolution (American Revolution model).
 
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#18
The evergreen attempt to find some way not to discuss the cause of the Civil War. The right to secede, somehow enshrined in the Constitution, visible to those wearing slave colored glasses, invisible to everyone else.
With all due respect, there are other issues that it is equally valid to discuss. Why try to shut down other avenues of historical inquiry by obsessing over slavery? No one is forcing you to read or comment on the discussion.
 

matthew mckeon

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#19
With all due respect, there are other issues that it is equally valid to discuss. Why try to shut down other avenues of historical inquiry by obsessing over slavery? No one is forcing you to read or comment on the discussion.
If by "obsessing" you mean actually engaging in history, guilty as charged. And I'll read and comment as I please, within the rules of the forum.
 

jgoodguy

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#20
As an attorney and historian I often get this question. Here is my usual answer:

American law is based on English common law. One of the basic tenants of the common law is that no party to an agreement can unilaterally change or void the agreement. You cannot do it in a contract, partnership or marriage unless there is a specific provision in the agreement or procedure set forth in the law. The founding fathers were mostly lawyers and businessmen who were familiar with the common law so that they knew what they were agreeing to by adopting the Constitution. There being no specific provision in the Constitution, which is also the supreme law, the union was meant to be perpetual and, therefore, secession is illegal.

Unilateral secession by a state was not contemplated by the founding fathers. If it was there would have been no need for the Federalist Papers, essentially a series of “editorials” arguing for the adoption of the Constitution. If the union was not meant to be perpetual and unilateral secession was possible then only a few words would have been needed to convince people that it should be adopted – “You’re worried about the Constitution? Adopt it, try it for a few years, if it’s not working, just secede from the union.” No one said that because it was not the intent.

James Madison, considered to be the father of the Constitution, even said during the nullification crisis, “It is high time that the claim to secede at will should be put down by the public opinion.”

In my opinion, there are only two ways for a state to legally secede: (1) all of the other states would have to agree to the break up of the union (much like India getting it independence from the U.K.) or the state declares its independence, fights a war, WINS the war, and gets the other states to sign a treaty recognizing its independence, thus, the illegal rebellion becomes a legal revolution (American Revolution model).
I agree with your analysis.
 



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