Discuss secession

CW Buff

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I was pretty much responding to the title... 14 pages is a bit much.
I'm sure there were various degrees of understanding. My overall point would be that it isn't a totally indefensible concept...

With respect, I'd have to disagree with the overall point.

...since a) there were states talking about seceding well before the ACW...

When and in what cases were states presenting secession in the form of a legal, constitutional option. As far as I can see, that was c1830, SC, Nullification Crisis (at the earliest, I've also heard Calhoun did not apply his theories to secession at that time). Therefore, the guys I was talking about, Southern leaders, were the only ones I know of that talked about legal, constitutional secession. Did anyone else talk of secession in any sense other than as a call to revolution for just cause (irrespective of actual cause).

....b) it took a Supreme Court decision after the ACW to determine that it was illegal...

I could be wrong, but I don't see how SCOTUS can rule on secession until someone actually commits it. From the start, SCOTUS disavowed any ability to present advice, refusing a request by Washington. At any rate, SCOTUS cut the legs out of secession beginning in 1793, when they refuted its basis, state compact theory, and supported its antithesis, the national sovereignty of the people of the US, in multiple decisions. Coincidently, of the four I'm familar with, two were overwhelming (1 dissent), and two were unanimous.

....and c) states on both sides of the political spectrum (CA and TX) have been talking about it in the last few years.

You're clearly stretching now. This was evidence that it was wasn't "a totally indefensible concept" c1860? Anyways, 20th/21st century crackpots can't possibly legitimize unilateral secession. For one thing they are contradicting the one factor you did recognize, post-ACW SCOTUS case law.
 

KLSDAD

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With respect, I'd have to disagree with the overall point.



When and in what cases were states presenting secession in the form of a legal, constitutional option. As far as I can see, that was c1830, SC, Nullification Crisis (at the earliest, I've also heard Calhoun did not apply his theories to secession at that time). Therefore, the guys I was talking about, Southern leaders, were the only ones I know of that talked about legal, constitutional secession. Did anyone else talk of secession in any sense other than as a call to revolution for just cause (irrespective of actual cause).



I could be wrong, but I don't see how SCOTUS can rule on secession until someone actually commits it. From the start, SCOTUS disavowed any ability to present advice, refusing a request by Washington. At any rate, SCOTUS cut the legs out of secession beginning in 1793, when they refuted its basis, state compact theory, and supported its antithesis, the national sovereignty of the people of the US, in multiple decisions. Coincidently, of the four I'm familar with, two were overwhelming (1 dissent), and two were unanimous.



You're clearly stretching now. This was evidence that it was wasn't "a totally indefensible concept" c1860? Anyways, 20th/21st century crackpots can't possibly legitimize unilateral secession. For one thing they are contradicting the one factor you did recognize, post-ACW SCOTUS case law.
I'll stand by my words... "isn't totally indefensibe" and my reasoning which you quoted above.

They made up a post 14 pages into a thread. I'm not really interested in a major stand-alone discussion, sorry.

Although if I was allowed to I'd love to address your 21st century crackpots comment!! :D
 

jgoodguy

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When and in what cases were states presenting secession in the form of a legal, constitutional option. As far as I can see, that was c1830, SC, Nullification Crisis (at the earliest, I've also heard Calhoun did not apply his theories to secession at that time). Therefore, the guys I was talking about, Southern leaders, were the only ones I know of that talked about legal, constitutional secession. Did anyone else talk of secession in any sense other than as a call to revolution for just cause (irrespective of actual cause).
Agree.
Calhoun's compact theory included a multilateral secession procedure. In all my reading there is no unilateral secession procedure as the 1860-61 ever suggested. I have seen secession as a right theories, that is a State cannot be stopped from seceding, but there is process involved. The secessionists of 1860-61 were in a hurry and wanted to avoid delay, because with delay cooler heads might prevail. It was secession made up as it went.

The secessionists of 1860-61 did every thing a good revolutionary does: takes control of area without permission of the soverign, takes all the sovereign's assets they can get particularity military items and declares independence. If it looks like a duck, quacks like a duck walks like a duck why in the world call it a secession. The reason is political theater AKA propaganda
I could be wrong, but I don't see how SCOTUS can rule on secession until someone actually commits it. From the start, SCOTUS disavowed any ability to present advice, refusing a request by Washington. At any rate, SCOTUS cut the legs out of secession beginning in 1793, when they refuted its basis, state compact theory, and supported its antithesis, the national sovereignty of the people of the US, in multiple decisions. Coincidently, of the four I'm familar with, two were overwhelming (1 dissent), and two were unanimous.
Agree.
SCOTUS can not rule on a theory, has to be a tangible issue. We have Taney's written notes that he thought session was not constitutional, with Unionists in the majority a Texas vs White type case would rule secession not constitutional. Both Texas v White and Luther v. Borden(1849) suggest that SCOTUS will not rule on a potential secession beause secession is a political issue to be resolved by Congress and the States.


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jgoodguy

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QUOTE="Rebforever, post: 1709031, member: 7521"]Which Constitutional law tells you that? :whistling:[/QUOTE]
??? A you have noted many many times, Secession is not in the Constitution, which means it is unconstitutional. Besides no law says anything is not constitutional, that is a duty of SCOTUS.
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Rebforever

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??? A you have noted many many times, Secession is not in the Constitution, which means it is unconstitutional. Besides no law says anything is not constitutional, that is a duty of SCOTUS.
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You have a right to the wrong opinion. Do you believe the Constitution? There is noting in the Constitution that says secession is illegal either. The 10th amendment pretty well covers secession.
 

jgoodguy

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You have a right to the wrong opinion. Do you believe the Constitution? There is noting in the Constitution that says secession is illegal either. The 10th amendment pretty well covers secession.
I agree. I am seldom wrong so I rarely avail myself of that right. I might be rusty on understanding the intricacies of it.

Noting that secession is not in the Constitution therefore not Constitution, nor in the 10th amendment, because no one has found a power of secession existing at the time of the Constitutional Convention. Can't make stuff up and cry 10th amendment.
 

OpnCoronet

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In a historical context, I believe a pertinent point is the fact that, as with most theoretical constructs, unilateral secession was only one among many controversies over the exact nature of the Constitution and its gov't and laws. and that, as noted by jgoodguy, the fact it is not mentioned in the Constitution, is not necessarily a point in its favor.
 

jgoodguy

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In a historical context, I believe a pertinent point is the fact that, as with most theoretical constructs, unilateral secession was only one among many controversies over the exact nature of the Constitution and its gov't and laws. and that, as noted by jgoodguy, the fact it is not mentioned in the Constitution, is not necessarily a point in its favor.
I agree with the observation that what courts ruled and laws were one thing. What was in men's minds and hearts another.
 

Andersonh1

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In a historical context, I believe a pertinent point is the fact that, as with most theoretical constructs, unilateral secession was only one among many controversies over the exact nature of the Constitution and its gov't and laws. and that, as noted by jgoodguy, the fact it is not mentioned in the Constitution, is not necessarily a point in its favor.

The national Constitution is largely concerned with setting up the Federal government. Where it deals with the states, it's mainly to restrict them from certain powers that are given to the Federal government. The Constitution is not a document that exhaustively lists what states can and cannot do (because that is not its purpose or function) and in fact leaves that question rather open-ended with the 9th and 10th amendments. So the fact that secession is not mentioned is not all that meaningful, given that most state powers are not mentioned.
 

jgoodguy

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The national Constitution is largely concerned with setting up the Federal government. Where it deals with the states, it's mainly to restrict them from certain powers that are given to the Federal government. The Constitution is not a document that exhaustively lists what states can and cannot do (because that is not its purpose or function) and in fact leaves that question rather open-ended with the 9th and 10th amendments. So the fact that secession is not mentioned is not all that meaningful, given that most state powers are not mentioned.

I disagree, no contract of the Constitutional nature is "rather open-ended" No contract allows one party to just make stuff up. If you got such a contract, please take the time to show it.

In addition. The 10 also reserves power to the people. The power to destroy or fundamentally change the US resides with the people, not with the States.

Finally from the 10th. Emphsis mine.
X.
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 powers delegated to the United States that preclude secession on a whim.
Flying fists of the Constitution.

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Andersonh1

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I disagree, no contract of the Constitutional nature is "rather open-ended" No contract allows one party to just make stuff up. If you got such a contract, please take the time to show it.

Then show me the list of state powers and where the Constitution sets them out. I don't see how you can look at the 10th amendment (and you quote that amendment) and not say that the Constitution simply does not enumerate the powers of the states or the people. The majority are simply not to be found in the Constitution, but they exist, so we have to look elsewhere.

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.
- The subject of the amendment is "powers". The amendment goes on to define two sets of powers (detailed in the body of the Constitution)
- The Constitution delegates certain powers to the United States
- The Constitution prohibits certain powers to the states

Those are the enumerated powers. The amendment says clearly that any power not in that enumerated list is reserved to the states or the people. That's fairly wide-open. In face, it's almost too wide-open, because no method is giving to judge what powers belong with the states or what powers belong with the people.

Federalist 45: 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. For indefinite, one might almost say open-ended.


 
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jgoodguy

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Then show me the list of state powers and where the Constitution sets them out. I don't see how you can look at the 10th amendment (and you quote that amendment) and not say that the Constitution simply does not enumerate the powers of the states or the people. The majority are simply not to be found in the Constitution, but they exist, so we have to look elsewhere.

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.​
Do you have a power of secession describing its function and procedure written down and existing at the time of the Constitutional Convention? If not all I see is an assertion that stuff can be made up and become a power exclusive to the States and not the people via the 10th amendment. Are you asserting that secesson powers are ethereal and without tangible form? I suggest that if a power of secession exists, it exists in a tangible form with procedures.
SCOTUS Chief Justice Roger Taney, January, 1861 memorandum emphasis mine.
The South contends that a state has a constitutional right to secede from the Union formed with her sister states. In this I submit the South errs. No power or right is constitutional but what can be exercised in a form or mode provided in the constitution for its exercise. Secession is therefore not constitutional, but revolutionary;and is only morally competent, like war, upon failure of justice."
The burden of proof is on you to show such a power of secession exists, not on me to show it does not.

edited to add. My position is that there is no tangible evidence of a power of secession.
 

Andersonh1

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edited to add. My position is that there is no tangible evidence of a power of secession.

Unless you can provide me with an exhaustive enumerated list of the powers of states or the people, your claim has no starting point. The only limitation on the powers of the states or the people are the limitations the constitution places on them. This is my starting point: powers that haven't been delegated to the federal government or forbidden to the states by the Constitution, and that's pretty wide open.
 
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