George Bassett's hypothetical

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trice

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General comment. I see a statement above that says the Supreme Court should not be the final word on the meaning of the Constitution. Strangely, the Constitution itself says this about that:

Section 2
1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State; —between Citizens of different States, —between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The only change ever made to that was the Eleventh Amendment:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
That certainly gives the Supreme Court a great deal of power over the law in the United States. It hands the fate of all Cases arising under the Constitution, Laws and Treaties of the United States of America to the Supreme Court. It gives no jurisdiction at all to any other part of the Federal government.

There are two early cases that establish the doctrine of Judicial Interpretation and Judicial Review for the Supreme Court in the United States:
  1. Hylton v. United States, 1796​
  2. Marbury v. Madison, 1803​
However, Judicial Review had been around in the US before then. The 1787 Bayard v. Singleton case in North Carolina is said to be the first example. This method of Judicial Review in the American courts was so successful and admired that it is referred to as the "American Model". The "American Model" is implemented in a few dozen countries around the world.

Until and unless an Amendment to the Constitution is passed to change this, the Supreme Court really does have the last word on the meaning of the Constitution.

Sorry if this digresses too far from the "George Bassett's hypothetical" topic.
 
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a statement above that says the Supreme Court should not be the final word on the meaning of the Constitution
Could you quote it for me? You're not misconstruing a statement that pretty much said the opposite are you?
 
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trice

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Could you quote it for me? You're not misconstruing a statement that pretty much said the opposite are you?
I was thinking of " (all the more if you think Supreme Court decisions, in this case especially Dred Scott, should be the final word on the meaning of the Constitution) "
 
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Carronade

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I think that the method of secession is important. Unilateral secession, regardless of the reason, strikes me as illegal.
Isn't secession, or the seeking of independence by any means, usually unilateral? Can we cite instances in which parts of nations have asked politely if they can become independent and had the central government agree?
 

trice

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Isn't secession, or the seeking of independence by any means, usually unilateral? Can we cite instances in which parts of nations have asked politely if they can become independent and had the central government agree?
Secession -- at least in the way the South of 1860-61 meant it -- was a legal claim that was invalid. Instances like that which are attempted through violence and illegal acts are really examples of rebellion and revolution.

Here are a few examples of peaceful separation done by the consent of the central government:
  • the separation of Iceland from Denmark, beginning in 1869 and finalized in 1944
  • the separation of Norway from Sweden, 1905
  • the dissolution of Czechoslovakia into Slovakia and the Czech Republic, 1993
There are undoubtedly a few more if you want to delve into the post-World War II days when the British Empire let a bunch of colonies loose, or what happened other places as the colonial empire days wound down. Some obviously involved violence (French Indo-China, the Mau-Mau in Kenya, Belgian Congo, etc.) Some did not (India, Bermuda, South Africa, etc.) Some may be a bit nebulous one way or another.
 

Horrido67

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Secession -- at least in the way the South of 1860-61 meant it -- was a legal claim that was invalid.
Had the secessionists of 1860-61 thought they had a valid legal argument, they would have took the case to court. I think the Supreme Court would have stuck down their claim in the way that they would have struck down any abolitionist's claim that slavery was unconstitutional in the pre-13th amendment United States.

It seems like few Abolitionists wished that the doctrine of 'inalienable rights' from DoI was a legal doctrine when it wasn't. They just had to accept that American at the point simply did not live up to its very founding principles. I can't blame them, though. People still struggle today to achieve that dream that Founding Fathers set.
 
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trice

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Had the secessionists of 1860-61 thought they had a valid legal argument, they would have took the case to court. I think the Supreme Court would have stuck down their claim in the way that they would have struck down any abolitionist's claim that slavery was unconstitutional in the pre-13th amendment United States.
There are at least three ways a state could peacefully and legally leave the Union within the framework of the United States Constitution. "The South" claimed they had a "right of secession" under the United States Constitution. IMHO, the fact that they did not take their case to court -- or indeed use any legal method of leaving the Union under the United States Constitution -- is prima facie evidence that -- no matter what they claimed -- they did not truly believe in the "right of secession" under the law.

In late 1860, the Supreme Court probably didn't believe in the "right of secession" as a legal concept. With the Virginia Justice having just died, my best guess is the Court would have divided into 2 Justices supporting the "right of secession", 2 Justices against, and 4 swing Justices who would probably have leaned against it. Chief Justice Taney did not believe the "right of secession" was legal, but might have voted for it to avoid a Civil War.

IMHO, the only real legal case for a Supreme Court decision allowing secession would be for "the South" to show evidence of injury done to them by the federal government so damaging that the only possible remedy for it would be to release "the South" from their bargain to remain bound to the Union. As people like Alexander Stephens pointed out in the "Winter of Secession", they had no valid argument that would convince the Court such a condition existed. Knowing they had no case, "the South" claimed they did for political spin reasons, but deliberately chose to act illegally, seizing property and using armed force, because they knew they were in the wrong.

It seems like few Abolitionists wished that the doctrine of 'inalienable rights' from DoI was a legal doctrine when it wasn't. They just had to accept that American at the point simply did not live up to its very founding principles. I can't blame them, though. People still struggle today to achieve that dream that Founding Fathers set.
The Courts sometimes has used the Declaration of Independence as the basis for a legal decision -- example: the Supreme Court long ago decided that citizenship in the United States began on July 4, 1776. Much more commonly, the Court might use it as an indication of the principles and intent that the country was founded on when it interprets laws passed later.
 

GwilymT

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Isn't secession, or the seeking of independence by any means, usually unilateral? Can we cite instances in which parts of nations have asked politely if they can become independent and had the central government agree?
Brexit is close, as would be Scottish independence from the UK had the Scotts approved the independence referendum. The breakup of Czechoslovakia could serve as an example. Secession or the seeking of independence doesn’t necessarily have to be “by any means” and certainly doesn’t have to be unilateral.

Jamaica from the UK is a prime example.

Since this is a hypothetical thread one could easily imagine a large state who’s cultural norms aren’t necessarily in line with the rest of the country attempting to gain independence. What one would be hard pressed to imagine is said state trying to do so unilaterally.
 
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