Is Texas v. White ironclad proof of secession's illegality?

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OpnCoronet

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There is proof that there are reserved powers, there is no proof, that a 'right to secede from the Union, outside of Revolution, is one of those particular powers.

As noted by trice, the process of withdrawing from the Union is found in other clearly expressed powers in the Constitution and not in the unexpressed portipns.
 

Shelby's Foot

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Then why did North Carolina and Rhode Island have to ratify the Constitution, if they were already in the Union? Surely it applied to them regardless of their agreement or not.
I agree, but you are ceding a lot of territory.

If it were one continuous union, why is any State ratification necessary?
If it were one continuous union, "The United States in Congress, assembled" could just adopt a statute saying that as of a date certain, the Constitution replace the Articles. And done with it.

Here is why State ratification is necessary.
While almost no one believes it today, the Founders believed the last paragraph of the Declaration. These States were as nations under "the Law of Nations." That's why Article VII of the Constitution is necessary. This is why State ratification is necessary. That's why State ratification is optional, and the last four states never have to ratify. Like a "treaty."

In the Law of Nations, nothing can bind the State to a treaty, except the State itself; and that is why they can un-ratify.
"Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act." (Madison)

Neither one State, nor a group of States can bind another; and that is why they can un-ratify.
"no political relation can subsist between the assenting and dissenting States," (Madison)

End of story. This is as close as it gets to "ironclad proof" in a case like this.
 
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trice

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Then why did North Carolina and Rhode Island have to ratify the Constitution, if they were already in the Union? Surely it applied to them regardless of their agreement or not.
I agree, but you are ceding a lot of territory.
As I said in reply to Andersonh1:
No, the Constitution itself says that it did not:​
Article. VII.
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.
 
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trice

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If it were one continuous union, why is any State ratification necessary?
If it were one continuous union, "The United States in Congress, assembled" could just adopt a statute saying that as of a date certain, the Constitution replace the Articles. And done with it.

Here is why State ratification is necessary.
While almost no one believes it today, the Founders believed the last paragraph of the Declaration. These States were as nations under "the Law of Nations." That's why Article VII of the Constitution is necessary. This is why State ratification is necessary. That's why State ratification is optional, and the last four states never have to ratify. Like a "treaty."

In the Law of Nations, nothing can bind the State to a treaty, except the State itself; and that is why they can un-ratify.
"Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act." (Madison)

Neither one State, nor a group of States can bind another; and that is why they can un-ratify.
"no political relation can subsist between the assenting and dissenting States," (Madison)

End of story. This is as close as it gets to "ironclad proof" in a case like this.
You already know better than this. The Congress approved the Constitution and sent it on to the States to be ratified in accord with the procedure outlined in the Articles of Confederation and Perpetual Union, which required ratification by the States.
 

trice

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"no political relation can subsist between the assenting and dissenting States," (Madison)
Here again we have another example of a partial quote taken deliberately out of context and misrepresented. Here is the paragraph that snippet comes from; the part you omitted is in blue bold text:

The second question is not less delicate; and the flattering prospect of its being merely hypothetical forbids an over-curious discussion of it. It is one of those cases which must be left to provide for itself. In general, it may be observed that although no political relation can subsist between the assenting and dissenting States, yet the moral relations will remain uncanceled. The claims of justice, both on one side and on the other, will be in force, and must be fulfilled; the rights of humanity must in all cases be duly and mutually respected; whilst considerations of a common interest, and, above all, the remembrance of the endearing scenes which are past, and the anticipation of a speedy triumph over the obstacles to reunion, will, it is hoped, not urge in vain moderation on one side, and prudence on the other.

The "second question" is this:

2. What relation is to subsist between the nine or more States ratifying the Constitution, and the remaining few who do not become parties to it?
Please stop trying so hard to mislead people.
 

Shelby's Foot

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Please stop trying so hard to mislead people.
Uh-oh. Avoiding the substance and going after "Shelby" again. And that is within the rules?

Your charge carries a burden of responsibility and proof.
Show that the rest of the text supposedly voids that "no political relation can subsist between the assenting and dissenting States," and voids all the other places where Madison says the same thing or the Declaration says the same thing or the Virginia Ratification Ordinance reserves the dreaded so-called right to secession - and evidence that runs on and on and on.

You have been told time and time again - your disagreement is with the Founders, not me. I can't be tricked on that point by going-after-the-speaker tactics.

If you wish to refute Madison here, or any other Founding document, then do so. Prove that States are bound without their consent - guess what - you are going to need that Lost Clause. IMO, you are going to need a lot of them. lol
 
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OpnCoronet

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If you wish to refute Madison here, or any other Founding document, then do so. Prove that States are bound without their consent - guess what - you are going to need that Lost Clause. IMO, you are going to need a lot of them. lol


But the question appears to be, are you in agreement with Madison's completed thoughts as shown by trice, on the matter or your snippet, i.e., do they say the same thing, to you, or not ?
 

Shelby's Foot

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But the question appears to be, are you in agreement with Madison's completed thoughts as shown by trice, on the matter or your snippet, i.e., do they say the same thing, to you, or not ?
The worst out-of-context quote in this thread is "perpetual union." lol

Take it out of context, then use it for a pretext in misconstruction to create a non-existent entity.

What is the name of the "perpetual union"? What Article establishes it? Is it "the United States in Congress, assembled" or some other imaginary union?

That's what the questions have appeared to be for 10 pages. And those question shave been addressed to you.
 

trice

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Uh-oh. Avoiding the substance and going after "Shelby" again. And that is within the rules?

Your charge carries a burden of responsibility and proof.
Show that the rest of the text supposedly voids that "no political relation can subsist between the assenting and dissenting States," and voids all the other places where Madison says the same thing or the Declaration says the same thing or the Virginia Ratification Ordinance reserves the dreaded so-called right to secession - and evidence that runs on and on and on.

You have been told time and time again - your disagreement is with the Founders, not me. I can't be tricked on that point by going-after-the-speaker tactics.

If you wish to refute Madison here, or any other Founding document, then do so. Prove that States are bound without their consent - guess what - you are going to need that Lost Clause. IMO, you are going to need a lot of them. lol
Already done:
Here again we have another example of a partial quote taken deliberately out of context and misrepresented. Here is the paragraph that snippet comes from; the part you omitted is in blue bold text:

The second question is not less delicate; and the flattering prospect of its being merely hypothetical forbids an over-curious discussion of it. It is one of those cases which must be left to provide for itself. In general, it may be observed that although no political relation can subsist between the assenting and dissenting States, yet the moral relations will remain uncanceled. The claims of justice, both on one side and on the other, will be in force, and must be fulfilled; the rights of humanity must in all cases be duly and mutually respected; whilst considerations of a common interest, and, above all, the remembrance of the endearing scenes which are past, and the anticipation of a speedy triumph over the obstacles to reunion, will, it is hoped, not urge in vain moderation on one side, and prudence on the other.

The "second question" is this:

2. What relation is to subsist between the nine or more States ratifying the Constitution, and the remaining few who do not become parties to it?
Please stop trying so hard to mislead people.
 
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georgew

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I personally tend to steer clear of the topic of secession' legal status, and political discussions of the War period. Emotional attachment on both sides of the argument, unbending attitudes, a habit of modern politics infecting thought of the contenders and their conclusions, and finally outright baiting of people tends to dispel any thought of my part in participating, most of time because I don't care for being angry. But in the interest of seeing if calm debate can be had, after seeing yet another thread with passions running high, I wish to put out there a thought, on Texas v. White that people on one side claims as irrefutable proof of their point of view, and the other side fumbles to answer it. Here in this thread I'm not making my personal answers plain, and am just presenting a theory to see how the different sides of secession argument answer it, I may throw something out for digestion, but as of right now I want to observe, if you will. I'm not "trolling" or deliberately trying to start arguments where tempers flare, I'm simply curious as to everyone else's thoughts.

Texas v. White

I sometimes wonder how many people on either side of the debate of secession have actually sat down, read the whole thing and understood it, or how many people have sat down read it, and saw the clever legal shenanigan it can be interpreted as. Its conclusions are made abundantly clear, but reading that often argued over document, I can help but notice that it contradicts itself. Before any thoughts are given to saying one contradiction is irrelevant I'd like to point out in politics, in any era, one line of a document can be twisted in any direction to serve the person twisting it. Moving along and getting to the point I submit before the reader one little part of it.

"6. When Texas became one of the United States, she entered into an indissoluble relation. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation except through revolution or the consent of the States."

That one line, or even just the word "except" can be used to change the views of others, and be used to subvert the rest of the document and even say secession was legal because the way it was carried out. I'm not saying it does, just that it can be interpreted that way. The reason I say that is because of the word "revolution". Later in Texas v. White, it spells out the exact sequence of events leading to secession, this may be over simplifying it, but Texas called a secession convention, and voted for secession, and submitted it to the people to vote on it, which the majority of Texans voted for secession. The twist is, isn't that a revolution and therefore legalizing the secession of Texas?

The dictionary definition for revolution, specifically the Merriam-Webster definition 2-b is:
": a fundamental change in a political organization
especially: the overthrow or renunciation of one government or ruler and the substitution of another by the governed

Is that not what happened? Both sides of the "Compact of States in the Constitution" vs. "Compact of the Union with the people" crowds of political and historical thought can find something here to either sink their argument or float it. The duly elected representatives of the people voted for secession and then submitted it to the people who voted for secession, so did not a revolution in the relationship between the governed and existing government happen? Does this not give the secession of the Southern United States a legal standing, albeit few years after the fact? I'm curious to see where this thread goes...

Reminder I am not making my views plain, I'm presenting a theory to see where it goes.
Out of curiosity, isn't the terminology above just asking for trouble? "Except...the consent of the states". ALL of the states? By a simple majority? If you look at the scattered history of secession with staggered withdrawals from the Union, you almost have to go state by state to determine how their decisions were made. In some ways, the Texas approach with a general confirmation by the voters seems pretty benign. Especially when you consider the limitations of who could vote in those days. You wonder what would have happened if the issue had not come to the fore until the 1864 elections. Texas had a huge influx of immigrants during this period, largely from Europe where slavery had been a no no for a long time. In fact, some of the more radical get out of the union types actually ambushed a bunch of germans who were trying to get out of dodge. I think we have to consider the times. I was originally from Louisiana. You can make a good argument that state seceded through a minority chicanery. On the other hand, look at Missouri. Prior to an attempt at secession, the state militia was able to raise a large armed force. With secession much of that organization just melted away. Think Samuel Clemens. The reason for this is frequently forgotten. During that era most folks had a primary loyalty to their State. In agrarian areas it was not uncommon to have people who had never left their own county. Only the wealthy and mercantile classes traveled on a regular basis and average educational level was low. The emphasis on teaching US laws, etc., really didn't happen until the mass migrations from Eastern Europe in the late 19th Century. As for the perpetual attachment of the states to the Union, I would argue that it took amendments to the Constitution after the war to create the basis for our current situation. The war hurt virtually everyone on both sides. There were a lot of people with life long wishes for revenge. It shows up in reconstruction and the delayed reaction to it. In my family we had in laws from Arkansas who fought for the Confederacy. After the war two of the brothers didn't speak to each other for 25 years because one had voted for a Republican post-war. I think the reason that Davis, Lee, Johnston, etc didn't end up at the end of a rope was the fact that prior to the war there was no clear requirement for any state to remain in the Union forever. Consider the fact that northern politicians at one time or another considered the possibility of turning New York City into an open free port, and some New Englanders wanted the issue settled so they could get back to business. One unanticipated effect of the war was that it caused large numbers of the southern population to move. They saw a lot of new things and ways of doing those things. In Texas there is a holiday "Juneteenth". It came about because about 250,000 slaves had been moved out of areas taken by the Union during the war and moved to Texas. And when they were freed in June, 1865, they and their decendents have celebrated it. It wasn't a fast process, but it started something. Just how well the pre-war slave-owning class came out of the war isn't real clear. A lot of them had hard currency deposits in European banks. Rich people don't want to become poor people and this class did everything possible to regain their authority during and after reconstruction. A simple fact is that people have to eat and share-cropping became a partial replacement for many aspects of slavery. It also directly pitted the poor against each other by race and created a political monster that still hasn't been totally resolved to this date. The bottom line on secession is that the agricultural barons of the pre-war south had pretty much filled up all of their land usable for cash crops. Cotton was a huge money maker, but couldn't be grown everywhere. As a result some of the cotton magnates wanted to move their operations west and south. A number of the filibuster types were attempting to overthrow existing governments in central american to allow a spread of slavery. Cotton was a labor intensive economy, subject to seasonal debt for the growers and vulnerable to bad weather, crop diseases and drought. The southern approach inherited from the British was to import a labor force and essentially breed future additions to this group. Oh, by the way, the current electoral college system for presidential elections evolved early as a way to assure that agricultural or low population states would not be rolled over by the high population states. This is why you also get two senators per state regardless of population, but representatives in the lower house by by a formula that needs to be changed after each census as the population shifts. We didn't have direct election of Senators until about 1914. Prior they were appointed by the state governors and ratified by state legislatures. Oh, the formula only recognizes US citizens who can vote versus raw population numbers.
 

Rusk County Avengers

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Out of curiosity, isn't the terminology above just asking for trouble? "Except...the consent of the states". ALL of the states? By a simple majority?
Personally I think by "consent of the States" they meant by the representatives of the States in Congress. In other words Congress decides.

Now if we went literal and took it to mean literally all the States, I think that would require Convention of States as laid out by Article V to decide on the matter. It could be by majority vote, or could be by unanimous consent depending on how supposed proposal for a State's secession from the Union is proposed, I honestly don't know for sure. After that if the States said "sure go for it" I imagine the whole fracas would end up before the Supreme Court.

As for the rest of your post, and I mean absolutely no offence, nor am bashing it, but the way you've jumped around, I think you may be overthinking it. The way you jumped around kinda confused me and got me lost. But as far as the Texas vote for secession in 1861, everyone in Texas who could vote was allowed to vote, sure there were some threats spewed by both sides, but compared to other Southern States it was civil and happened without a hitch. The immigrants you speak of congregated in one area and those counties mostly voted for staying in the Union, but they were still a minority, and they got to vote and did it, they had their say. Of course things did go down hill in relations, some Germans threated to march on Austin, Texans got incensed and went on a rampage, it was just a mess all around with both sides being guilty of something wrong, (it takes two to tango after all). But at the end of the day the majority of Texans legitimately voted for secession.

Case in point, a LOT of Texans volunteered for the Confederacy, from all walks of life. Some sources say more per capita than any other State (again some sources, me I'm kinda on the fence), just look at any first hand account of Confederate soldiers marching through Texas, or average people. Almost all men of fighting age were off fighting, and every one at home supported it, pro-Confederacy sentiment was high, even in 1865 after Lee surrendered. Pro-Union sentiment was pretty low, many may point out the before mentioned German Unionists, and or the Gainesville hangings, but the fact remains those Unionists were a minority. Sure they had rights, but there was a war on, and tempers were high on both sides was gonna end badly for the minority.

Some folks may argue that the majority of Texas was for the Union and voter suppression happened in large numbers, even back then, but one person that would argue otherwise is General Philip Sheridan. He learned the value of that information during the early days of Reconstruction. Quotes like "These people don't know the War's over!" and "If I owned Texas and I owned Hell, I'd rent out Texas and live in Hell!" says it all.
 

BigTex

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...the local or municipal [state] authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general [national] authority, than the general authority is subject to them, within its own sphere.” – Madison, The Federalist No. 39[/QUOTE]
Well, the 20th Century certainly has proven Mr. Madison wrong. LoL.
 
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BigTex

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Exactly. Thank you. It’s the mission statement of the supreme law of the land. It tells us who established the supreme law of the land, and who therefore has the supreme legal authority (sovereignty) to alter or abolish the Constitution, and by extension, the political society (the more perfect Union, i.e. “the Land”) and government (the Fed) it in turn establishes. The implications of that have clear legal ramifications.

We the people of the United States, do ordain and establish this Constitution. Here we see the people acting as sovereigns of the whole country, and, in the language of sovereignty, establishing a Constitution by which it was their will that the State governments should be bound, and to which the State Constitutions should be made to conform. Every State Constitution is a compact made by and between the citizens of a State to govern themselves in a certain manner, and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves as to general objects in a certain manner. By this great compact however, many prerogatives were transferred to the national government, such as those of making war and peace, contracting alliances, coining money, etc. etc.” – Chisholm v. Georgia, 1793

It’s a constitution. It works the same basic way as the state constitutions. Except, of course, it is supreme to them. If they wanted it to work differently, they would have had to have stated that in the document, for instance:

"We, the people of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent federal government, establish justice, insure domestic tranquillity, and secure the blessings of liberty to ourselves and our posterity invoking the favor and guidance of Almighty God do ordain and establish this Constitution for the Confederate States of America."

Whatever that means.
So the Court declares the Constitution is a compact. I wonder what those who say that this idea of a 'compact' is a myth put forward by secessionists will say about that?
 

BigTex

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No. The draft was given to Gouverneur Morris. Morris was the most vocal member of the Philadelphia Convention, speaking there officially 173 times. Morris rewrote it, taking into account the debates and discussions at the Philadelphia Convention -- which he was inherently involved in. His version is explicitly different in many ways that you seem to be ignoring. It was then approved by the Convention (when they voted to send it on to the Congress), by the Congress (when they voted to send it to the States) and then by the people of the states themselves in conventions (when they ratified the Constitution).

The difference between the first draft and the final version that was actually approved and ratified is substantial. It was also controversial, the subject of strong opinions.

At the Virginia Ratifying Convention, Patrick Henry was adamantly opposed to "We, the People of the United States". He angrily said:
Who authorized them to speak the language of ‘We the People,’ instead of ‘We the States’?”​

James Madison replied:
“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. In this particular respect the distinction between the existing and the proposed governments is very material. The existing system has been derived from the dependent derivative authority of the legislatures of the states; whereas, this is derived from the superior power of the people.
And Mr. Madison deflects. Mr. Henry's question has never been answered.
 
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American87

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Texas v. White does not say secession is illegal; it says unilateral secession is illegal. For example, if South Carolina declared itself independent today, it would be illegal under Texas v. White. However, if all 50 states held a convention and decided that South Carolina was free to leave the Union and was thus independent, then it would be legal. This appears to be based on contract law, which says a contract can be broken only if all parties to it consent. In other words, the Constitution is seen as a contract, and the only way to back out is if all parties to the Constitution agree. A state backing out on its own accord would be like a building contractor taking your money and never constructing your house.

However, it's doubtful if the Supreme Court even has the authority to rule on something like this. The concept of Judicial Review, which gives the Supreme Court power to nullify laws, was only created in 1804 in the case Marbury v. Madison. Before that case, it was argued that only the states, as sovereign bodies, have the power to nullify laws. This is what caused such a raucous when South Carolina claimed the right to nullify the tariff: President Andrew Jackson supported the Judicial Review Theory. Since the War Between the States, "big government" has taken over, and states rights have been suppressed. You would be hard pressed to find a post-1865 Supreme Court Justice arguing for State Nullification Theory.

Of course, this is important, because under the State Nullification Theory, Texas v. White wouldn't matter. Secession would be left to the states, because the X Amendment leaves to the states all powers not delegated to the federal government, and the arbiters of the secession question would be the states themselves. In other words, if South Carolina wants to secede, then it can secede, because that right is reserved under the X Amendment, and each state has the authority to decide what is constitutional.

So no, Texas v. White is hardly ironclad. What is ironclad is public opinion, which has been taught to accept Judicial Review. Anyone who publicly argues for State Nullification Theory would get the third degree in today's media.

There's also the reasoning behind Texas v. White, but that might be for a different thread.
 

OpnCoronet

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Texas v. White does not say secession is illegal; it says unilateral secession is illegal. For example, if South Carolina declared itself independent today, it would be illegal under Texas v. White. However, if all 50 states held a convention and decided that South Carolina was free to leave the Union and was thus independent, then it would be legal. This appears to be based on contract law, which says a contract can be broken only if all parties to it consent. In other words, the Constitution is seen as a contract, and the only way to back out is if all parties to the Constitution agree. A state backing out on its own accord would be like a building contractor taking your money and never constructing your house.

However, it's doubtful if the Supreme Court even has the authority to rule on something like this. The concept of Judicial Review, which gives the Supreme Court power to nullify laws, was only created in 1804 in the case Marbury v. Madison. Before that case, it was argued that only the states, as sovereign bodies, have the power to nullify laws. This is what caused such a raucous when South Carolina claimed the right to nullify the tariff: President Andrew Jackson supported the Judicial Review Theory. Since the War Between the States, "big government" has taken over, and states rights have been suppressed. You would be hard pressed to find a post-1865 Supreme Court Justice arguing for State Nullification Theory.

Of course, this is important, because under the State Nullification Theory, Texas v. White wouldn't matter. Secession would be left to the states, because the X Amendment leaves to the states all powers not delegated to the federal government, and the arbiters of the secession question would be the states themselves. In other words, if South Carolina wants to secede, then it can secede, because that right is reserved under the X Amendment, and each state has the authority to decide what is constitutional.

So no, Texas v. White is hardly ironclad. What is ironclad is public opinion, which has been taught to accept Judicial Review. Anyone who publicly argues for State Nullification Theory would get the third degree in today's media.

There's also the reasoning behind Texas v. White, but that might be for a different thread.







Or, as noted by the Court, States can only leave the Union, by Consent or Revolution.
 
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American87

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There is proof that there are reserved powers, there is no proof, that a 'right to secede from the Union, outside of Revolution, is one of those particular powers.

As noted by trice, the process of withdrawing from the Union is found in other clearly expressed powers in the Constitution and not in the unexpressed portipns.
Can you provide the quotes from the Constitution that delegate the power of secession to the federal government? Trice's post # would suffice as well.

Any power not delegated to the federal government is reserved to the states or to the people. That is what the X 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."

That means unless the Constitution delegates the power of secession to the federal government, then that right is reserved to the states or to the people. It's even questionable if Texas v. White has any authority, because the Constitution does not give the Supreme Court any power to govern; that is a relatively recent theory that was introduced in 1804, after Thomas Jefferson and James Madison argued, via the Kentucky and Virginia Resolutions, that the states have the power to nullify laws. The drafters and ratifiers of the Constitution never intended the Supreme Court to have that much power, because it is essentially an oligarchy, where the Court of nine Justices decide which laws are valid. It's totally opposed to the Republican government that the Founders laid out. The first president who sought to enforce Judicial Review Theory was Andrew Jackson, who was notorious for aggrandizing the federal government.
 

OpnCoronet

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Can you provide the quotes from the Constitution that delegate the power of secession to the federal government? Trice's post # would suffice as well.
Any power not delegated to the federal government is reserved to the states or to the people. That is what the X Amendment says:
That means unless the Constitution delegates the power of secession to the federal government, then that right is reserved to the states or to the people. It's even questionable if Texas v. White has any authority, because the Constitution does not give the Supreme Court any power to govern; that is a relatively recent theory that was introduced in 1804, after Thomas Jefferson and James Madison argued, via the Kentucky and Virginia Resolutions, that the states have the power to nullify laws. The drafters and ratifiers of the Constitution never intended the Supreme Court to have that much power, because it is essentially an oligarchy, where the Court of nine Justices decide which laws are valid. It's totally opposed to the Republican government that the Founders laid out. The first president who sought to enforce Judicial Review Theory was Andrew Jackson, who was notorious for aggrandizing the federal government.



In point of historical fact, there is no more proof of a 'Right' of secession than, that it deoes not exist at all, except through the operation of prescribed law, i.e., unilateral secession operates outside the operation of the Organic Law of the Union and thuus, cannot violate any of the clearly expressed powers of the Constituion, No Matter the Constitution or Laws of any State.

Supreme Court rulings have the Force of Law, where applicable.

Madison explicitly denied the right of a state to block Federal Law and denied his Va. Resolution advocated it. But,, even if he did, he would have been as wrong as Jefferson in his Ky Resolution.

Until such time as the Courts or Congress overturns Tx v White, its rulings concerning secession and the CW, are a part of the Law of The Land.
 
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