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

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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.
Can you explain your first paragraph again, but in differrent words? I'm not sure what you mean. If you're saying that unilateral secession is illegal, then I agree to the extent that that's the decision in Texas v. White. However, the Founders laid out a constitution with a defined and limited federal government, with all powers not delegated to that government being reserved to the states or to the people. That's 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."

This is why states are left to handle public education, transportation, etc., because those responsibilities are not delegated to the federal government. Whatever issues or questions arise now or hereafter are left to the states or to the people, unless delegated to the federal government. Secession is not delegated to the federal government, so it is left to the states or to the people. That is the stance taken in the Constitution.

Supreme Court rulings do not have the force of law. They have force, because the federal government, in all likelihood, will enforce them, but there is no Constitutional provision for this. The Constitution is silent when it comes to nullifying legislation, executive orders, and state actions. The first nullification theory was the State Nullification Theory, which was expressed by Thomas Jefferson and James Madison in the Kentucky and Virginia Resolutions:

"That this assembly most solemnly declares a warm attachment to the Union of the States, to maintain which it pledges all its powers; and that for this end, it is their duty to watch over and oppose every infraction of those principles which constitute the only basis of that Union, because a faithful observance of them, can alone secure it's existence and the public happiness."

"That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil"

"The General Assembly doth solemnly appeal to the like dispositions of the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid, are unconstitutional; and that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people."

-James Madison, Virginia Resolution of 1798.

This is a clear case of a state declaring a federal act unconstitutional. Massachusetts published a similar resolution during the War of 1812:

"Resolved, That the act of the Congress of the United States, passed on the 9th day of January in the present year, for enforcing the act laying an embargo and the several acts supplementary thereto, is, in the opinion of the Legislature, in many respects unjust, oppressive and unconstitutional, and NOT LEGALLY BINDING on the citizens of this state. But notwithstanding this opinion, in order finally to secure a certain and permanent relief, it is earnestly recommended to all parties aggrieved by the operation of this act, to abstain from forcible resistance, and to apply for their remedy, in a peaceable manner, to the LAWS of the Commonwealth."

Chief Justice John Marshall was the first Justice to declare an act unconstitutional from the bench. He did this in the 1804 case, Marbury v. Madison, but it had no binding effect. It was simply his opinion. The first person in the federal government who attacked State Nullification Theory was President Andrew Jackson, who was notorious for aggrandizing the federal government. His nicknames were "King Andrew" and "The General." It was not until after the Civil War, when "big government" took over, that Judicial Review Theory was enforced by the federal government. However, the Constitution is silent on this point, and it's more a matter of people acquiescing in Judicial Review than the Supreme Court having any Constitutional authority to govern. If the state of Pennsylvania declared a federal act unconstitutional, it would be equally as legal as the Supreme Court doing so. The Constitution should perhaps be amended here. Maybe an oligarchy of Judges should be written into the Constitution, or the State Nullification Theory should be, or maybe some new theory.
 

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unionblue

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Secession may be possible, but not unilateral secession. That particular form of secession was settled on the battlefield.

However, in my own opinion, secession of a State may be accomplished by other means. By petition to the other States, by a nationwide referendum, by legislative means in the US Congress or a ruling by the Supreme Court if such a case is presented and warranted.

Or just plain old fashioned revolution by a majority of the people fed up with their present government.

Their choice.
 

thomas aagaard

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I still have seen no evidence that Congress can't just pass a bill saying X state is out of the Union.
Just like the procedure for adding a new state.
 

trice

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I still have seen no evidence that Congress can't just pass a bill saying X state is out of the Union.
Just like the procedure for adding a new state.
There actually is none.:smile:

In US history, there never has been any attempt to expel a State AFAIK (or at least none that got far enough to generate serious debate in Congress or a court decision). Because neither the Articles of Confederation and Perpetual Union nor the Constitution mentions expelling a State, the status of this power is unknown/undetermined and it might or might not exist in US law. There is actually far more evidence to use to argue that the unilateral "right of secession" does not exist (because of the Civil War, Texas v. White, and the 14th Amendment). It is the flip side of the "right of secession" argument: if a State can leave any time it wants, then the country can expel a State (or possibly even dissolve the State) any time it wants.

The only part of the US government that could actually make a legal determination on this is the Supreme Court (and its' subordinate courts). In US legal tradition, the Supreme Court would not do that until a case was brought before it -- so no determination would be made until and unless the Congress actually tried to do this.
 
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The legal question of secession was largely settled by the conclusion of the War Between The States. Texas V. White simply put the icing on the cake.
That being said, it is obvious that until that ruling was made, the question was still up in the air. This was largely the reason Davis wasn't tried for "treason" since legally there was no ruling that secession was a crime and the war ended before the ruling was made.
It does however make for another interesting argument: if secession was "illegal" then why did 11 States have to be "readmitted" to the Union if - according to the US government - they never really left?
 

CSA Today

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The legal question of secession was largely settled by the conclusion of the War Between The States. Texas V. White simply put the icing on the cake.
That being said, it is obvious that until that ruling was made, the question was still up in the air. This was largely the reason Davis wasn't tried for "treason" since legally there was no ruling that secession was a crime and the war ended before the ruling was made.
It does however make for another interesting argument: if secession was "illegal" then why did 11 States have to be "readmitted" to the Union if - according to the US government - they never really left?
Just another inconsistency of the Yankee ruling class.
 

BlueandGrayl

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Well I don't want to be too biased here but in the case of Texas v. White (which I read myself) although it did rule against unilateral secession it noted that secession was hypothetically possible either through consent of the states or revolution both of which the Confederacy did do. In other words, unilateral secession is illegal but not secession as a whole.
 

thomas aagaard

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There actually is none.:smile:

In US history, there never has been any attempt to expel a State AFAIK (or at least none that got far enough to generate serious debate in Congress or a court decision).
Expelling a state might be a bit much.

But if a state held a referendum and a clear majority wanted out. Their members of congress submitted a bill saying they where leaving, Congress passed it and the president signed it, I do think this would be legal. (especially in the cases of the states that joined later and was admitted by congress)

But Iam sure such a bill would involve a lot negotiation and cover payment of the states share of the national debt, payment for all federal facilities and so on. And details on the future relationship between the new Sovereign state and the US.
(citizenship, trade and military relations and so on)

Brexit is obviously not comparable since the UK is a sovereign state that is a member of a supranational union.
(where the US "states" are part of one state with a federal structure, just like Germany or Brazil) but it do show how extremely complex a task it would be.
 

unionblue

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The legal question of secession was largely settled by the conclusion of the War Between The States. Texas V. White simply put the icing on the cake.
That being said, it is obvious that until that ruling was made, the question was still up in the air. This was largely the reason Davis wasn't tried for "treason" since legally there was no ruling that secession was a crime and the war ended before the ruling was made.
It does however make for another interesting argument: if secession was "illegal" then why did 11 States have to be "readmitted" to the Union if - according to the US government - they never really left?
Just another inconsistency of the Yankee ruling class.
They weren't "readmitted" as Lincoln and others said they had never been out of the Union.

The "inconsistency of the Yankee ruling class" the US Congress in actually, made rule changes in the way it recognized and admitted the ex-slave state representatives to be seated in the House and the Senate, blocking many ex-Confederates from retaking their former seats in either chamber.

One of those consequences of being defeated in a rebellion against the government in which they had formally served.

Unionblue
 
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Expelling a state might be a bit much.

But if a state held a referendum and a clear majority wanted out. Their members of congress submitted a bill saying they where leaving, Congress passed it and the president signed it, I do think this would be legal. (especially in the cases of the states that joined later and was admitted by congress)

But Iam sure such a bill would involve a lot negotiation and cover payment of the states share of the national debt, payment for all federal facilities and so on. And details on the future relationship between the new Sovereign state and the US.
(citizenship, trade and military relations and so on)

Brexit is obviously not comparable since the UK is a sovereign state that is a member of a supranational union.
(where the US "states" are part of one state with a federal structure, just like Germany or Brazil) but it do show how extremely complex a task it would be.
The U.S. might be different from Germany and Brazil. Who is considered sovereign in those countries?

In the U.S., the states are sovereign, although they "delegated" or "alienated" certain rights of sovereignty to the federal government.
The original preamble to the Constitution read,

"We the people of the States of New Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare, and establish the following Constitution for the Government of Ourselves and Our Posterity"

The Committee on Style and Arrangement believed this was clumsily written, because some states might not ratify the Constitution. Only 9 states were required for ratification. So a "stateless" preamble had to be written, and they recast it to read,

"We the People of the United States"

It was assumed that the "United States" were the states that ratified the Constitution, whether it be 9 of them, or 10, 11, 12, or 13.

Hamilton wrote in Federalist No. 32,

"An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States. This exclusive delegation, or rather this alienation, of State sovereignty, would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally CONTRADICTORY and REPUGNANT."

Madison agreed in Federalist No. 45, but in different language:

"yet, as the States will retain, under the proposed Constitution, a very extensive portion of active sovereignty"

The conclusion is clear: The states are sovereign, but they "delegate" or "alienate" several sovereign rights to the federal government. This is important in regards to Texas v. White for two reasons. First, the right of secession is reserved to the states or to the people, per the X Amendment, which reads,

"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 power of secession is not delegated to the federal government, and is thereby reserved to the states or to the people. This is the constitutional provision for Hamilton's and Madison's arguments that the states retain "a very extensive portion of active sovereignty."

Second, Madison declared that the states retained the right to declare federal acts unconstitutional. He also intimated that it was up to each state to decide to remain in the Union or not:

"That this assembly most solemnly declares a warm attachment to the Union of the States, to maintain which it pledges all its powers; and that for this end, it is their duty to watch over and oppose every infraction of those principles which constitute the only basis of that Union, because a faithful observance of them, can alone secure it's existence and the public happiness."

"That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil"

"The General Assembly doth solemnly appeal to the like dispositions of the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid, are unconstitutional; and that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people."

-James Madison, Virginia Resolution of 1798.

So the states, as part of their retained sovereignty, have the right to declare federal acts unconstitutional. The Supreme Court does not have this power, because it is part of the Constitution, and the right of nullification is not delegated to the federal government. This state power was taken for granted when Massachusetts published a similar resolution during the War of 1812:

"Resolved, That the act of the Congress of the United States, passed on the 9th day of January in the present year, for enforcing the act laying an embargo and the several acts supplementary thereto, is, in the opinion of the Legislature, in many respects unjust, oppressive and unconstitutional, and NOT LEGALLY BINDING on the citizens of this state. But notwithstanding this opinion, in order finally to secure a certain and permanent relief, it is earnestly recommended to all parties aggrieved by the operation of this act, to abstain from forcible resistance, and to apply for their remedy, in a peaceable manner, to the LAWS of the Commonwealth."

The first Chief Justice to declare an act unconstitutional from the bench was John Marshall, who did so in the 1804 case, Marbury v. Madison. But this had no binding effect on states; it was merely his opinion. The 'binding effect' could only be implemented by the states. It was not until Andrew Jackson was president that the first forceful attack was made against the power of State Nullification, and he himself was perhaps on the verge of breaking the Constitution by declaring war on South Carolina, because the Constitution reads,

"Treason against the United States, shall consist only in levying War against them"

So if Jackson followed through on his "Force Bill" to wage war against a state that was abiding by its sovereign rights, it would be treason.

It was not until after the Civil War, when the "big government nationalists" took over, that the federal government began enforcing Judicial Review on the states, in opposition to the Constitution, the Federalist Papers, and U.S. precedent. Judicial Review, of course, is the idea that the Supreme Court can issue rulings that are binding on the states.
 
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thomas aagaard

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The American states gave up their sovereignty when they rectified the Constitution.
  • They can't have a standing army or navy.
  • They don't control their own territory
  • They can't enter into treatises with other states. (Denmark, France...)
  • They can't send ambassadors to other states.
  • (They can't choose their own form of government)
  • (And at least post 1865 a US state can't unilaterally get out of the union.)
All are central elements of what a sovereign state can do.
This is why the declaration of independence got this part at the end:
and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.

And South Carolina in their deceleration of secession added the same: " and that the State of South Carolina has resumed her position among the nations of the world, as a separate and independent State; with full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do."
It is clearly that SC, even to the mind of the SC politicians, was not sovereign before this.

In the case of Texas it is even more clear, since they explicitly gave the federal government the right to give parts of Texas to Mexico.
All the states that where US territories obviously never had any sovereignty.
 
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The U.S. might be different from Germany and Brazil. Who is considered sovereign in those countries?

In the U.S., the states are sovereign, although they "delegated" or "alienated" certain rights of sovereignty to the federal government.
The original preamble to the Constitution read,

"We the people of the States of New Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare, and establish the following Constitution for the Government of Ourselves and Our Posterity"

The Committee on Style and Arrangement believed this was clumsily written, because some states might not ratify the Constitution. Only 9 states were required for ratification. So a "stateless" preamble had to be written, and they recast it to read,

"We the People of the United States"

It was assumed that the "United States" were the states that ratified the Constitution, whether it be 9 of them, or 10, 11, 12, or 13.

Hamilton wrote in Federalist No. 32,

"An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States. This exclusive delegation, or rather this alienation, of State sovereignty, would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally CONTRADICTORY and REPUGNANT."

Madison agreed in Federalist No. 45, but in different language:

"yet, as the States will retain, under the proposed Constitution, a very extensive portion of active sovereignty"

The conclusion is clear: The states are sovereign, but they "delegate" or "alienate" several sovereign rights to the federal government. This is important in regards to Texas v. White for two reasons. First, the right of secession is reserved to the states or to the people, per the X Amendment, which reads,

"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 power of secession is not delegated to the federal government, and is thereby reserved to the states or to the people. This is the constitutional provision for Hamilton's and Madison's arguments that the states retain "a very extensive portion of active sovereignty."

Second, Madison declared that the states retained the right to declare federal acts unconstitutional. He also intimated that it was up to each state to decide to remain in the Union or not:

"That this assembly most solemnly declares a warm attachment to the Union of the States, to maintain which it pledges all its powers; and that for this end, it is their duty to watch over and oppose every infraction of those principles which constitute the only basis of that Union, because a faithful observance of them, can alone secure it's existence and the public happiness."

"That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil"

"The General Assembly doth solemnly appeal to the like dispositions of the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid, are unconstitutional; and that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people."

-James Madison, Virginia Resolution of 1798.

So the states, as part of their retained sovereignty, have the right to declare federal acts unconstitutional. The Supreme Court does not have this power, because it is part of the Constitution, and the right of nullification is not delegated to the federal government. This state power was taken for granted when Massachusetts published a similar resolution during the War of 1812:

"Resolved, That the act of the Congress of the United States, passed on the 9th day of January in the present year, for enforcing the act laying an embargo and the several acts supplementary thereto, is, in the opinion of the Legislature, in many respects unjust, oppressive and unconstitutional, and NOT LEGALLY BINDING on the citizens of this state. But notwithstanding this opinion, in order finally to secure a certain and permanent relief, it is earnestly recommended to all parties aggrieved by the operation of this act, to abstain from forcible resistance, and to apply for their remedy, in a peaceable manner, to the LAWS of the Commonwealth."

The first Chief Justice to declare an act unconstitutional from the bench was John Marshall, who did so in the 1804 case, Marbury v. Madison. But this had no binding effect on states; it was merely his opinion. The 'binding effect' could only be implemented by the states. It was not until Andrew Jackson was president that the first forceful attack was made against the power of State Nullification, and he himself was perhaps on the verge of breaking the Constitution by declaring war on South Carolina, because the Constitution reads,

"Treason against the United States, shall consist only in levying War against them"

So if Jackson followed through on his "Force Bill" to wage war against a state that was abiding by its sovereign rights, it would be treason.

It was not until after the Civil War, when the "big government nationalists" took over, that the federal government began enforcing Judicial Review on the states, in opposition to the Constitution, the Federalist Papers, and U.S. precedent. Judicial Review, of course, is the idea that the Supreme Court can issue rulings that are binding on the states.
The remedy is Article V. Convention of States.
 

OpnCoronet

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Can you explain your first paragraph again, but in differrent words? I'm not sure what you mean. If you're saying that unilateral secession is illegal, then I agree to the extent that that's the decision in Texas v. White. However, the Founders laid out a constitution with a defined and limited federal government, with all powers not delegated to that government being reserved to the states or to the people. That's what the X Amendment says:






What I am saying(as did Lincoln, et. al.) is that there is no such thing as a 'Right' to secession, except the right as described in the DoI, Not the Constitution, i.e., the 'Right' to Revolutionize, as Lincoln described it. But, that is not the same thing as a right to withdraw from the Union of the volition of any individual state.

The States have an equal interest in and by the existence of their Union and no interest(s)of any state, or group of States is any more important than the interest(s) of any other, or group of States. Conflicts of interest between the states, and/or Federal Gov't, is what the Supreme Court is all about.

It is not, IMO, a wise tactic to to prove the Constitution wrong by referencing the Va. and Ky. Resolutions against the Constitution itself.

Madison, the only resolution writer, who actually had anything to do with the Writing and ratification of the Constitution, specifically denied his Va. Resolution advocated anything like Secession, and of course, Jefferson, it turned out, was not above turning a blind eye to strict construction of the Constitution, when it suited him.
 
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The American states gave up their sovereignty when they rectified the Constitution.
  • They can't have a standing army or navy.
  • They don't control their own territory
  • They can't enter into treatises with other states. (Denmark, France...)
  • They can't send ambassadors to other states.
  • (They can't choose their own form of government)
  • (And at least post 1865 a US state can't unilaterally get out of the union.)
All are central elements of what a sovereign state can do.
This is why the declaration of independence got this part at the end:
and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.

And South Carolina in their deceleration of secession added the same: " and that the State of South Carolina has resumed her position among the nations of the world, as a separate and independent State; with full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do."
It is clearly that SC, even to the mind of the SC politicians, was not sovereign before this.

In the case of Texas it is even more clear, since they explicitly gave the federal government the right to give parts of Texas to Mexico.
All the states that where US territories obviously never had any sovereignty.
Very good post. But I must disagree as to sovereignty.

In 1776, the thirteen colonies declared independence at the same time. That is why the Declaration of Independence reads,

"as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do."

These are attributes of sovereignty they previously lacked because they were colonies. As free and independent states, they now had total sovereignty, each and every one of them.

When they ratified the Constitution, they did not relinquish sovereignty; they "delegated" or "alienated" certain rights of sovereignty to the federal government. That is why Hamilton wrote in Federalist No. 32,

"An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States."

Madison agreed in Federalist No. 45:

"yet, as the States will retain, under the proposed Constitution, a very extensive portion of active sovereignty"

The original preamble to the Constitution read,

"We the people of the States of New Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare, and establish the following Constitution for the Government of Ourselves and Our Posterity"

The Committee on Style and Arrangement believed this was clumsily written, because some states might not ratify the Constitution. Only 9 states were required for ratification, so a "stateless" preamble had to be written in case some states, like Rhode Island, declined to ratify. Thus the preamble was recast to read,

"We the People of the United States"

It was assumed that the "United States" were the states that ratified the Constitution, whether it be 9 of them, or 10, 11, 12, or 13. Thus the states, or rather the people of the states, are sovereign, although they "delegate" or "alienate" certain rights of sovereignty to the federal government. This seems absurd today; you have to actively research the topic to figure this out. Our education system, popularized by New England after the Civil War, leaves this out.

Thus when South Carolina announced in 1860, via its Declaration of Causes,

"the State of South Carolina has resumed her position among the nations of the world, as a separate and independent State; with full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do,"

she is saying she recalls all rights that had been "delegated" or "alienated" to the federal government, which happen to be the same ones listed in the 1776 Declaration of Independence. She does not list the rights that had been retained as part of her "extensive portion of active sovereignty."

The same applies to Texas: she "delegated" or "alienated" certain sovereign rights. The states that had been created out of territories never were previously soverign states, but the Constitution and the Federalist papers apply to them as equally as to the original 13 states:

"New States may be admitted by the Congress into this Union"
-Article IV, Section 2, Clause 1

The "extensive portion of active soreignty" for all states, new and old, were explicity reserved by the IX Amendment:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,"

and the X Amendment, which reads,

"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"

These amendments were almost left out, because the founders took it for granted that they would be assumed.
 
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What I am saying(as did Lincoln, et. al.) is that there is no such thing as a 'Right' to secession, except the right as described in the DoI, Not the Constitution, i.e., the 'Right' to Revolutionize, as Lincoln described it. But, that is not the same thing as a right to withdraw from the Union of the volition of any individual state.

The States have an equal interest in and by the existence of their Union and no interest(s)of any state, or group of States is any more important than the interest(s) of any other, or group of States. Conflicts of interest between the states, and/or Federal Gov't, is what the Supreme Court is all about.

It is not, IMO, a wise tactic to to prove the Constitution wrong by referencing the Va. and Ky. Resolutions against the Constitution itself.

Madison, the only resolution writer, who actually had anything to do with the Writing and ratification of the Constitution, specifically denied his Va. Resolution advocated anything like Secession, and of course, Jefferson, it turned out, was not above turning a blind eye to strict construction of the Constitution, when it suited him.
The "right" of secession exists, because the people of the states are sovereign (see post #253). This means they have the power to do anything they want short of crimes against humanity, provided it does not conflict with the rights delegated to the federal government. This was made explicit within the Constitution by the IX Amednemnt:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,"

and the X amendment:

""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."

If the Constitution prohibited secession, then the only way out would be revolution. But since the Constitution is silent on secession, it is up to the states or the people of each state to decide.

The Supreme Court is about giving its opinion on cases. Their rulings have no force whatsoever. Other parties, however, may choose to enforce Supreme Court rulings. For example, Congress might decide to cut funding for a state that refuses to follow a Supreme Court ruling. If any party uses violence to enforce a Supreme Court decision, it would be treason, because the Constitution reads,

"Treason against the United States, shall consist only in levying War against them"

However, many people miss this point, because we have been spoon fed the idea that Judicial Review Theory is the "law of the land." It's not. Supreme Court decisions have no force whatsoever, and that can not be emphasized enough. A Constitutional provision for Judicial Review would be oligarchy. It is merely a theory that many, perhaps most, people are led to believe. Therefore it is close to oligarchy, but not quite the same.

Another nullification theory, which also lacks constitutional provision, is the State Nullification Theory, which holds that states have the power to nullify federal acts. This is what Jefferson and Madison argued, and it was precedent in this country until the Civil War. So the argument isn't just about the Kentucky and Virginia resolutions, it's about a theory and precedent that practically everyone agreed to and followed up to the Civil War.

Do you have a source for Madison denying that his Virginia Resolution had anything remotely to do with secession? It reads,

"That this assembly most solemnly declares a warm attachment to the Union of the States, to maintain which it pledges all its powers; and that for this end, it is their duty to watch over and oppose every infraction of those principles which constitute the only basis of that Union, because a faithful observance of them, can alone secure it's existence and the public happiness."

"That the General Assembly doth also express its deep regret, that a spirit has in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that implications have appeared of a design to expound certain general phrases (which having been copied from the very limited grant of power, in the former articles of confederation were the less liable to be misconstrued) so as to destroy the meaning and effect, of the particular enumeration which necessarily explains and limits the general phrases; and so as to consolidate the states by degrees, into one sovereignty, the obvious tendency and inevitable consequence of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy"

In other words, the Union is contingent upon the federal government respecting state sovereignty. If it goes beyond the Constitution, especially the X Amendment, then the basic principle which holds the Union together is dissolved.
 
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thomas aagaard

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anything they want short of crimes against humanity,
(...)
If the Constitution prohibited secession, then the only way out would be revolution. But since the Constitution is silent on secession, it is up to the states or the people of each state to decide.
Crimes against humanity is a legal concept from the 1940ties. By modern standards slavery is a crime against humanity.
But the concept did not exist in 1860 and slavery was completely legal.
(Just another example of how things like moral change. Another is the question of voting rights for women)

And if a state want out of the union they cango to congress and have them pass a bill saying you are out.
Since this is the procedure for adding new states, it make perfect sense to use the same for removing a state.

Unilateral secession the issue, not secession in it self.
 

Viper21

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Crimes against humanity is a legal concept from the 1940ties. By modern standards slavery is a crime against humanity.
But the concept did not exist in 1860 and slavery was completely legal.
(Just another example of how things like moral change. Another is the question of voting rights for women)

And if a state want out of the union they cango to congress and have them pass a bill saying you are out.
Since this is the procedure for adding new states, it make perfect sense to use the same for removing a state.

Unilateral secession the issue, not secession in it self.
The phrase "crime against humanity" has been around a lot longer than the 1940's. While it's use definitely spiked in the WWII era, it also spiked in the WWI era, ACW era, & was in use well before either.

enhance.jpg


https://books.google.com/ngrams/gra...re=&direct_url=t1;,crime against humanity;,c0

There is no procedure for secession listed in the founding documents. To suggest, just go to congress & have a bill passed is laughable. Congress & the Fed Gov are going to declare themselves oppressive when..? Seriously. If a state feels it is being oppressed, or injured enough by the Feds (or other states) to want out of the Union, they should go to the same government, & get them to declare their oppression, & release them...?

We the Delegates of the people of Virginia, duly elected in pursuance of a recommendation from the General Assembly, and now met in Convention, having fully and freely investigated and discussed the proceedings of the Federal Convention, and being prepared as well as the most mature deliberation hath enabled us, to decide thereon, DO in the name and in behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will: that therefore no right of any denomination, can be cancelled, abridged, restrained or modified, by the Congress, by the Senate or House of Representatives acting in any capacity, by the President or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes: and that among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained or modified by any authority of the United States.

https://www.usconstitution.net/rat_va.html

Weird how Virginia used this exact same verbiage in their Ordinance of Secession. Seems Virginia was simply exercising her rights exactly as stated at the Constitution's ratification.

An Ordinance

To repeal the ratification of the Constitution of the United States of America, by the State of Virginia, and to resume all the rights and powers granted under said Constitution.

The people of Virginia, in their ratification of the Constitution of the United States of America, adopted by them in Convention, on the twenty-fifth day of June in the year of our Lord, one thousand seven hundred and eighty-eight, having declared that the powers granted under the said Constitution, were derived from the people of the United States, and might be resumed whensoever the same should be perverted to their injury and oppression; and the Federal Government having perverted said powers, not only to the injury of the people of Virginia, but to the oppression of the Southern slaveholding States.

Now, therefore, we the people of Virginia, do declare and ordain,That the ordinance adopted by the people of this State in Convention, on the twenty-fifth day of June, in the year of our Lord one thousand seven hundred and eighty eight, whereby the Constitution of the United States of America was ratified; and all acts of the General Assembly of this State ratifying or adopting amendments to said Constitution, are hereby repealed and abrogated; that the Union between the State of Virginia and the other States under the Constitution aforesaid is hereby dissolved, and that the State of Virginia is in the full possession and exercise of all the rights of sovereignty, which belong and appertain to a free and independent State. And they do further declare,That said Constitution of the United States of America is no longer binding on any of the Citizens of this State.

This ordinance shall take effect and be an act of this day when ratified by a majority of the votes of the people of this State, cast at a poll to be taken thereon, on the fourth Thursday in May next, in pursuance of a Schedule hereafter to be enacted

Done in Convention in the City of Richmond, on the seventeenth day of April, in the year of our Lord one thousand eight hundred and sixty-one, and in the eighty-fifth year of the Commonwealth of Virginia.


https://www.encyclopediavirginia.org/Virginia_Ordinance_of_Secession_April_17_1861


I don't believe it takes a lot of dot connecting to see, Virginia felt she was simply exercising her rights as outlined in the ratification of the Constitution. Virginia had no reason to believe this was not, exactly the procedure necessary to dissolve her relationship with the Union, precisely as agreed upon in 1788.
 

unionblue

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The phrase "crime against humanity" has been around a lot longer than the 1940's. While it's use definitely spiked in the WWII era, it also spiked in the WWI era, ACW era, & was in use well before either.

View attachment 315729

https://books.google.com/ngrams/graph?content=crime+against+humanity&year_start=1800&year_end=2000&corpus=15&smoothing=3&share=&direct_url=t1;,crime against humanity;,c0

There is no procedure for secession listed in the founding documents. To suggest, just go to congress & have a bill passed is laughable. Congress & the Fed Gov are going to declare themselves oppressive when..? Seriously. If a state feels it is being oppressed, or injured enough by the Feds (or other states) to want out of the Union, they should go to the same government, & get them to declare their oppression, & release them...?

We the Delegates of the people of Virginia, duly elected in pursuance of a recommendation from the General Assembly, and now met in Convention, having fully and freely investigated and discussed the proceedings of the Federal Convention, and being prepared as well as the most mature deliberation hath enabled us, to decide thereon, DO in the name and in behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will: that therefore no right of any denomination, can be cancelled, abridged, restrained or modified, by the Congress, by the Senate or House of Representatives acting in any capacity, by the President or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes: and that among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained or modified by any authority of the United States.

https://www.usconstitution.net/rat_va.html

Weird how Virginia used this exact same verbiage in their Ordinance of Secession. Seems Virginia was simply exercising her rights exactly as stated at the Constitution's ratification.

An Ordinance

To repeal the ratification of the Constitution of the United States of America, by the State of Virginia, and to resume all the rights and powers granted under said Constitution.

The people of Virginia, in their ratification of the Constitution of the United States of America, adopted by them in Convention, on the twenty-fifth day of June in the year of our Lord, one thousand seven hundred and eighty-eight, having declared that the powers granted under the said Constitution, were derived from the people of the United States, and might be resumed whensoever the same should be perverted to their injury and oppression; and the Federal Government having perverted said powers, not only to the injury of the people of Virginia, but to the oppression of the Southern slaveholding States.

Now, therefore, we the people of Virginia, do declare and ordain,That the ordinance adopted by the people of this State in Convention, on the twenty-fifth day of June, in the year of our Lord one thousand seven hundred and eighty eight, whereby the Constitution of the United States of America was ratified; and all acts of the General Assembly of this State ratifying or adopting amendments to said Constitution, are hereby repealed and abrogated; that the Union between the State of Virginia and the other States under the Constitution aforesaid is hereby dissolved, and that the State of Virginia is in the full possession and exercise of all the rights of sovereignty, which belong and appertain to a free and independent State. And they do further declare,That said Constitution of the United States of America is no longer binding on any of the Citizens of this State.

This ordinance shall take effect and be an act of this day when ratified by a majority of the votes of the people of this State, cast at a poll to be taken thereon, on the fourth Thursday in May next, in pursuance of a Schedule hereafter to be enacted

Done in Convention in the City of Richmond, on the seventeenth day of April, in the year of our Lord one thousand eight hundred and sixty-one, and in the eighty-fifth year of the Commonwealth of Virginia.

https://www.encyclopediavirginia.org/Virginia_Ordinance_of_Secession_April_17_1861


I don't believe it takes a lot of dot connecting to see, Virginia felt she was simply exercising her rights as outlined in the ratification of the Constitution. Virginia had no reason to believe this was not, exactly the procedure necessary to dissolve her relationship with the Union, precisely as agreed upon in 1788.
...were derived from the people of the United States, and might be resumed by them whensoever the same shall be perverted totheir injury or oppression...

Should have highligted and emboldened this part, as it pertains to the people of the United States.
 

OpnCoronet

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The "right" of secession exists, because the people of the states are sovereign (see post #253). This means they have the power to do anything they want short of crimes against humanity, provided it does not conflict with the rights delegated to the federal government. This was made explicit within the Constitution by the IX Amednemnt:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,"
and the X amendment:
""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."
If the Constitution prohibited secession, then the only way out would be revolution. But since the Constitution is silent on secession, it is up to the states or the people of each state to decide.
The Supreme Court is about giving its opinion on cases. Their rulings have no force whatsoever. Other parties, however, may choose to enforce Supreme Court rulings. For example, Congress might decide to cut funding for a state that refuses to follow a Supreme Court ruling. If any party uses violence to enforce a Supreme Court decision, it would be treason, because the Constitution reads,
"Treason against the United States, shall consist only in levying War against them"
However, many people miss this point, because we have been spoon fed the idea that Judicial Review Theory is the "law of the land." It's not. Supreme Court decisions have no force whatsoever, and that can not be emphasized enough. A Constitutional provision for Judicial Review would be oligarchy. It is merely a theory that many, perhaps most, people are led to believe. Therefore it is close to oligarchy, but not quite the same.
Another nullification theory, which also lacks constitutional provision, is the State Nullification Theory, which holds that states have the power to nullify federal acts. This is what Jefferson and Madison argued, and it was precedent in this country until the Civil War. So the argument isn't just about the Kentucky and Virginia resolutions, it's about a theory and precedent that practically everyone agreed to and followed up to the Civil War.
Do you have a source for Madison denying that his Virginia Resolution had anything remotely to do with secession? It reads,
"That this assembly most solemnly declares a warm attachment to the Union of the States, to maintain which it pledges all its powers; and that for this end, it is their duty to watch over and oppose every infraction of those principles which constitute the only basis of that Union, because a faithful observance of them, can alone secure it's existence and the public happiness."
"That the General Assembly doth also express its deep regret, that a spirit has in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that implications have appeared of a design to expound certain general phrases (which having been copied from the very limited grant of power, in the former articles of confederation were the less liable to be misconstrued) so as to destroy the meaning and effect, of the particular enumeration which necessarily explains and limits the general phrases; and so as to consolidate the states by degrees, into one sovereignty, the obvious tendency and inevitable consequence of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy"
In other words, the Union is contingent upon the federal government respecting state sovereignty. If it goes beyond the Constitution, especially the X Amendment, then the basic principle which holds the Union together is dissolved.



The concept of a 'Right' to secession by Revolution is by a people is found in the DoI and not in the Organic Law of the Union of American States. In Historical terms, the evidence that a right of a people to overthrow their gov'ts as they saw fit, except as Revolution, was, I think, nonexistent at the time of the writing of the DoI, i.e., it was an unknown concept to the men who wrote and read the DoI, and, thus, cannot be any of the reserved powers of the X Amdnd. The silence of the Constitution is as much poof of its nonexistence as it does the opposite.

In point of fact, the Va. Resolutions advances the concept of 'interposition' of State authority between federal authority and its citizens, not secession. Your cited quote, says nothing about the remedy for growing Federal Consolidationism, by Secession, of any kind.

If you want to believe, Supreme Court decisions do not have the force of Law, that is your right(to disobey the law) but I would not recommennd your trying to take advantage of that belief, to the extent of disobeying any law as interpreted by the Supreme Court.

Even if there actually was a 'Right of Secession' in the reserved powers, how can it be empowered, without violating All the clearly expressed powers of the Constitution?

The Constitution is certainly not silent as to what are the powers of the Nation of all the peoples of all the states in their Union in ref. to when the interests of the Union of all the states in the Union conflict with the interests of any single, or group of states, i.e., in all events the Law must be obeyed., no matter the constitutions or laws of any state.
 

thomas aagaard

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The phrase "crime against humanity"
You are not quoting me correctly.

I was talking about it as a legal concept that was used in actual law. To my knowledge no one was ever convicted of it before 1945.
If you know of any lease share the information.


"To suggest, just go to congress & have a bill passed is laughable. "
Look at how a new state is added...
Adding a new state is a simple matter of congress passing a bill saying a new state is added.

Congress have every right to pass a bill saying an earlier bill is no longer in effect. So What is stopping them from passing a new bill saying that the first bill is no longer in effect?

So in the case of all the later states, there is nothing that stop Congress from letting the state leave the union.


Had SC gone to congress in late 1860 they might very well have gotten support for leaving.
Plenty of Free states was sick and tired of the slavestates using the federal government to oppress and violate the rights of the free-states. As they did with the fugitive slave laws, that forced citizens of free states to help catch run away slaves.

Had the south really wanted to avoid a war... this is what they should have done.
And if the north had then said no... they would have had the moral highground.
 
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