10th Amendment usage for secession

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In order to know what rights are not covered under the 10th, you must be able to list the rights that are retained under the 10th, and who retains them.
Well, I can tell you that one of the rights not retained by the states or the people under the 10th amendment was secession simply because it did not exist as a right prior to the 10th amendment. You may list as many others as you can find.
 

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Andersonh1

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Here's a good place to start: http://avalon.law.yale.edu/18th_century/fed45.asp

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.​
The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States. If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS.​
 

Tin cup

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Here's a good place to start: http://avalon.law.yale.edu/18th_century/fed45.asp

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.​
The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States. If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS.​
I like this one: https://constitutioncenter.org/media/files/constitution.pdf
It needs no opinion.

Kevin Dally
 

GwilymT

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Can you give us a complete list of rights retained by the people and the states under the 10th amendment? I'd like to see them.
I’m not sure such can be done. However, my question was whether or not any of the secessionists claimed they were exercising a constitutional right to secede under the 10th amendment. He seemed unable or unwilling to produce evidence of such if it exists. This thread is about whether or not the confederate secession was constitutional under the 10th. I’m wondering if the secessionists claimed their secession as legal under the 10th amendment. From the majority of their contemporary writings, it seems to me that they argued that the constitution was void due to developments at the federal level and thus they were no longer bound to it. In short, the constitutionality of secession was a moot point to them. None of the DOSs claim a constitutional right to secession under the 10th amendment. They were appealing to a natural right, not a constitutional one. I don’t recall any of them arguing that secession was perfectly legal because of the 10th. This notion comes later in an attempt to legitimize their actions. They knew secession was unconstitutional and didn’t care. Why the need to reframe it by putting thoughts and words in their mouths that they never expressed?

You can agree that they were correct in their exercise of a believed “natural right” but trying to say that they thought they were exercising a “constitutional right” under the 10th requires evidence that they thought such.
 
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Here's a good place to start: http://avalon.law.yale.edu/18th_century/fed45.asp

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.​
The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States. If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS.​
You're making it way too complicated. Did the people or states, prior to the effective date of the 10th amendment, have a right to secede? The absolute true answer is an unequivocal NO. If there is no right, it cannot be ceded to the federal government or kept by the people or states. there is nothing obscure or indefinite about this. Try as you might, you will not find a right to secede after the ratification of the Articles of Confederation. Before the Articles, there was nothing to secede from. The Articles were ratified by all the States and stated categorically that the Union was perpetual. How do you get a right to secede from that? You don't.
 

jgoodguy

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Can you give us a complete list of rights retained by the people and the states under the 10th amendment? I'd like to see them.
It is powers not rights. The Consitution divides up the soverignities' powers.

Granted that SCOTUS waffles back and forth on this, a list can be complied from what activities to control their land and citizens that States performed at the time of the Constitution. Marriage, Contracts, build roads, schools, criminal justice and the like. A rough division can be made that the States orginally controlled activities local to their States while the Fed controlled national activities. The 14th amendment and interpretations of the commerce clause may muddle this a bit, but it is useful.
 

jgoodguy

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ugh don't overcomplicate this.

States do state powers.
Federal do national powers.

This powers existed in tangible form in laws, court decisions, and State Constitutions.
 

Andersonh1

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You're making it way too complicated. Did the people or states, prior to the effective date of the 10th amendment, have a right to secede? The absolute true answer is an unequivocal NO. If there is no right, it cannot be ceded to the federal government or kept by the people or states. there is nothing obscure or indefinite about this. Try as you might, you will not find a right to secede after the ratification of the Articles of Confederation. Before the Articles, there was nothing to secede from. The Articles were ratified by all the States and stated categorically that the Union was perpetual. How do you get a right to secede from that? You don't.
The Union may be perpetual, but that does not mean members cannot come and go. Or else we'd still only have 13 states.
 
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The Union may be perpetual, but that does not mean members cannot come and go. Or else we'd still only have 13 states.
Come, not go. The Constitution has a very specific procedure for adding states. Had there been a right to secede there is zero doubt that the procedure for that would be spelled out too. Don't you think?
 

Andersonh1

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ugh don't overcomplicate this.

States do state powers.
Federal do national powers.

This powers existed in tangible form in laws, court decisions, and State Constitutions.
And there is some support for the idea that one of the responsibilities of the state governments was to protect citizens of the state from abuse of federal powers. Madison called for interposition. And the Federalist papers note that one of the functions of the states are to restrain the Federal government. My question is, how far does this protection go?

http://avalon.law.yale.edu/18th_century/fed46.asp

On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter. But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other.​
 

jgoodguy

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The Union may be perpetual, but that does not mean members cannot come and go. Or else we'd still only have 13 states.
If perpetual simply means no expiry date for the container known as the Union, it is like a glass jar that marbles get dropped into from time to time. The number of marbles may change, but there is no expire date for the jar. If the jar is dropped on a stone floor it will break.


Perpetual Statute Law and Legal Definition

Perpetual Statute Law and Legal Definition. A perpetual statute refers to a statute without limitation as to time. The continuance of a perpetual statute is not limited, although it is not expressly declared to be so.​
 

Andersonh1

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Come, not go. The Constitution has a very specific procedure for adding states. Had there been a right to secede there is zero doubt that the procedure for that would be spelled out too. Don't you think?
The mood and drive of the day was to keep the Union together and functioning, not to detail ways that some could leave it. Given that not every power of the states and people is spelled out in detail, the existence of secession is hardly ruled out because it's not listed out in exacting detail.
 

jgoodguy

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And there is some support for the idea that one of the responsibilities of the state governments was to protect citizens of the state from abuse of federal powers. Madison called for interposition. And the Federalist papers note that one of the functions of the states are to restrain the Federal government. My question is, how far does this protection go?

http://avalon.law.yale.edu/18th_century/fed46.asp

On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter. But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other.​
In my experience, the Federal government protects US citizens from abuse. From States we got slavery, the hanging of folks for having books the governors did not like, and protection for lynch mobs. There is a good reason for the 14th amendment.
 
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The mood and drive of the day was to keep the Union together and functioning, not to detail ways that some could leave it. Given that not every power of the states and people is spelled out in detail, the existence of secession is hardly ruled out because it's not listed out in exacting detail.
You refuse to believe your own eyes. Secession was not spelled out for the exclusive and very adequate reason that it did not exist as a power or a right. Whenever a right or power is acknowledged by the constitution, it is spelled out in detail. The Constitution spells out rights to speech, assembly, religion, bearing arms, jury trial, freedom from excessive bail and cruel/unusual punishment, freedom from self incrimination, the right to confront our accusers, security in our persons and possessions, the right to subpoena witnesses, the right to vote, the right not to be held in involuntary servitude, the right to due process. It spells out the powers held by Congress, the President and the Supreme Court. It spells out the procedure for a territory to become a state and enter the Union. It spells out the procedure for amending the Constitution. It spells out the definition of treason. It spells out the procedure for impeachment of the President. In all things where it really needs to be, the Constitution is quite specific. There is not spelled out anywhere a procedure for leaving the Union. Getting into the Union requires a procedure. Don't you think getting out needs one too? The absence of one speaks volumes, i.e. WE DON'T NEED A PROCEDURE FOR LEAVING THE UNION BECAUSE THERE IS NO RIGHT OR POWER TO DO SO.
 

jgoodguy

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The mood and drive of the day was to keep the Union together and functioning, not to detail ways that some could leave it. Given that not every power of the states and people is spelled out in detail, the existence of secession is hardly ruled out because it's not listed out in exacting detail.
That would apply to all sorts of imaginative rights. An assertion that proves too much proves little.
 

Andersonh1

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In my experience, the Federal government protects US citizens from abuse. From States we got slavery, the hanging of folks for having books the governors did not like, and protection for lynch mobs. There is a good reason for the 14th amendment.
It was the states that insisted on the Bill of Rights, don't forget.
 

Andersonh1

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You refuse to believe your own eyes.
No, I read a lot of contemporary views on what the Union was and how it worked, and how the government was meant to work, from people a lot closer to the founding than you or I. There is a massive body of political thought from 1790-1860 that is very different from what I was taught and what is often assumed by modern Americans to be the way things were.

Secession was not spelled out for the exclusive and very adequate reason that it did not exist as a power or a right.
It did. But at the time, the goal was to keep the Union together and strengthen it, not subtract from it. Free, sovereign and independent states can do whatever any other nation can do, including go their own way.

Whenever a right or power is acknowledged by the constitution, it is spelled out in detail.
The Constitution basically details two types of power: those given to the Federal government, and what the states are consequently restricted from doing. The primary focus is the Federal government, not the states, who have "numerous and indefinite" powers not remotely listed in the Constitution.

In other words, when it comes to the Federal government, if the Constitution doesn't give a power, the Federal government does not have it. If it doesn't list a power for the states, that means very little when it comes to whether the state has it or not.

The Constitution spells out rights to speech, assembly, religion, bearing arms, jury trial, freedom from excessive bail and cruel/unusual punishment, freedom from self incrimination, the right to confront our accusers, security in our persons and possessions, the right to subpoena witnesses, the right to vote, the right not to be held in involuntary servitude, the right to due process.
Because the states insisted that all of that be added. The Federalists in the 1st Congress would have been very happy never to have added any of it.

It spells out the powers held by Congress, the President and the Supreme Court.
Yes. It does not spell out state powers, however.

It spells out the procedure for a territory to become a state and enter the Union. It spells out the procedure for amending the Constitution. It spells out the definition of treason. It spells out the procedure for impeachment of the President. In all things where it really needs to be, the Constitution is quite specific. There is not spelled out anywhere a procedure for leaving the Union. Getting into the Union requires a procedure. Don't you think getting out needs one too? The absence of one speaks volumes, i.e. WE DON'T NEED A PROCEDURE FOR LEAVING THE UNION BECAUSE THERE IS NO RIGHT OR POWER TO DO SO.
Yes, there is.
 


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