Our Constitution and Secession

Potomac Pride

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#1
That's one interpretation.

The other is once they realized the institution was in danger because of the call for troops, Arkansas and Virginia quickly aligned themselves with their sister slave states.

Slavery was THE important topic and the reason they finally withdrew from the Union.
The fact is that was the same coercion anyone faces when they break the law. It's not a misuse of power, but the fulfillment of a duty and responsibility. VA had it right the first time, when they were calmly using their heads; the Constitution, and the Union, nation, and government it established, belonged to “the People of the United States” (note how they had even copied the capitalization of the Preamble). And from 1861 to 1865 “the People of the United States” defended them. Pro-slavery interpretations of the Constitution were self-serving, which is why they did not try to take them to court.


And by the same illogical logic:

The issue of slavery was important to the Cotton South states. However, they did NOT secede until Lincoln was elected. Therefore, the issue of slavery by itself was not important enough for them to withdraw from the Union.

All 11 states seceded to preserve slavery. Timing was just a matter of the degree of the perceived threat to their peculiar institution, which in turn was a matter of the degree of a state's reliance upon slavery.
Even before a secession convention was called in Virginia, the state had declared that it was vehemently opposed to any type of federal coercion against the states that had already left the Union. In fact, the Virginia General Assembly had even passed a resolution in early 1861 opposing any type of federal coercion which they would resist by any means necessary. They considered federal coercion to be a violation against the rights of the states. In Arkansas, there was a significant pro-Union sentiment and the secession convention initially decided against withdrawing from the Union. However, the Unionists and other delegates all agreed that any type of federal coercion would be legitimate grounds for secession in the future. Subsequently, after Lincoln's call for troops to suppress the southern states, Arkansas voted to secede as it had previously stated. Therefore, slavery was not the only issue involved in regards to the secession of both ARK. and VA.
 
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#2
I certainly agree that Lincoln's call for 75,000 troops to put down the rebellion polarized the situation and resulted in a number of additional Southern states voting to secede. The "rebellion" being the ill advised firing on Ft. Sumter by the Confederate forces, although no Union soldiers were killed. So in this day and age, with slavery no longer an issue, I wonder what the Federal Government's response would be if a state or states wanted to leave the union? I think the words in the Eagles song Hotel California come to mind, "you can check out anytime, but you can never leave". And just to be clear, I am NOT in any way advocating secession then or now.
I think it would be the same. If a state wanted to leave the Union legally, they would have to petition the congress to vote on their secession. If the Congress obliges then they are no longer in the Union. If they unilaterally secede, seize the state government then proceed to seize federal property within said state, then they are in rebellion. Under the constitution, the President of the United States has a duty to suppress rebellion.
 

CW Buff

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#3
I think it would be the same. If a state wanted to leave the Union legally, they would have to petition the congress to vote on their secession. If the Congress obliges then they are no longer in the Union. If they unilaterally secede, seize the state government then proceed to seize federal property within said state, then they are in rebellion. Under the constitution, the President of the United States has a duty to suppress rebellion.
Hi GwilymT, don't think we've talked before.

My question would be, where in the Constitution does Congress have that power?

As I see it there is simply no provision in the Constitution for states leaving the Union. Entering the Union, yes, but leaving, no. That would seem to indicate that only the sovereign people of the US can make the decision. This is also consistent with Texas v. White. Call them the people of the US, or the [collective] states, the matter, not having been addressed in our fundamental law, can only be handled by the sovereign, who holds the sovereign power to make, break, alter, and abolish our fundamental law. It is also, I believe, consistent with the Tenth Amendment, as I believe the phrase "or to the people" was added (to Madison's draft, upon reaching the Senate) to acknowledge the people's sovereign power over the Constitution, and the Union (nation) and government (Fed) it creates.
 

cash

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#4
Hi GwilymT, don't think we've talked before.

My question would be, where in the Constitution does Congress have that power?

As I see it there is simply no provision in the Constitution for states leaving the Union. Entering the Union, yes, but leaving, no. That would seem to indicate that only the sovereign people of the US can make the decision. This is also consistent with Texas v. White. Call them the people of the US, or the [collective] states, the matter, not having been addressed in our fundamental law, can only be handled by the sovereign, who holds the sovereign power to make, break, alter, and abolish our fundamental law. It is also, I believe, consistent with the Tenth Amendment, as I believe the phrase "or to the people" was added (to Madison's draft, upon reaching the Senate) to acknowledge the people's sovereign power over the Constitution, and the Union (nation) and government (Fed) it creates.
Article IV, Section 3 talks about admitting new states. That gives Congress control over the makeup of the Union. Therefore, it also gives the Congress the implied power of letting states leave the Union.
 

CW Buff

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#5
Article IV, Section 3 talks about admitting new states. That gives Congress control over the makeup of the Union. Therefore, it also gives the Congress the implied power of letting states leave the Union.
I don't see how that can be. Your first statement is dead accurate, IV-3 gives Congress control over admitting new states.

"New States may be admitted by the Congress into this Union;..."

That's very specific. The words 'new', 'admitted', and 'into' leave no wiggle room for cases involving opposite words like 'existing', 'withdrawal', and 'out of'. To my knowledge implied powers can only be extensions of enumerated powers. In the case of IV-3-1, it would have to be a power necessary and proper to the admission of a new state into the Union, because that is the specifically enumerated power.

Then there is Texas v. White.

"There was no place for reconsideration or revocation, except through revolution or through consent of the States."

"Consent of the states" would be a strange way to say "consent of Congress." In fact, if that was what he meant, shouldn't he have at least mentioned IV-3-1 + I-8-18.
 

cash

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#6
I don't see how that can be. Your first statement is dead accurate, IV-3 gives Congress control over admitting new states.

"New States may be admitted by the Congress into this Union;..."

That's very specific. The words 'new', 'admitted', and 'into' leave no wiggle room for cases involving opposite words like 'existing', 'withdrawal', and 'out of'. To my knowledge implied powers can only be extensions of enumerated powers. In the case of IV-3-1, it would have to be a power necessary and proper to the admission of a new state into the Union, because that is the specifically enumerated power.

Then there is Texas v. White.

"There was no place for reconsideration or revocation, except through revolution or through consent of the States."

"Consent of the states" would be a strange way to say "consent of Congress." In fact, if that was what he meant, shouldn't he have at least mentioned IV-3-1 + I-8-18.
Congress is comprised of representatives of the states .
 

cash

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#7
I don't see how that can be. Your first statement is dead accurate, IV-3 gives Congress control over admitting new states.

"New States may be admitted by the Congress into this Union;..."

That's very specific. The words 'new', 'admitted', and 'into' leave no wiggle room for cases involving opposite words like 'existing', 'withdrawal', and 'out of'. To my knowledge implied powers can only be extensions of enumerated powers. In the case of IV-3-1, it would have to be a power necessary and proper to the admission of a new state into the Union, because that is the specifically enumerated power.
To repeat, Article Four, in giving Congress the power over admitting new states, grants Congress the power over the makeup of the Union and hence the power to allow states to leave. It's an extension of the enumerated power to control the admission of states.
 

CW Buff

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#8
To repeat, Article Four, in giving Congress the power over admitting new states, grants Congress the power over the makeup of the Union and hence the power to allow states to leave. It's an extension of the enumerated power to control the admission of states.
And the withdrawal of an existing state from the Union is still the exact opposite of the admission of a new state into the Union. The Framers clearly provided for the latter, and not the former. The Necessary and Proper Clause can't and doesn't change that. If it could, the entire document would be rather pointless.
 

cash

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#9
And the withdrawal of an existing state from the Union is still the exact opposite of the admission of a new state into the Union. The Framers clearly provided for the latter, and not the former. The Necessary and Proper Clause can't and doesn't change that. If it could, the entire document would be rather pointless.
I note your opinion, but it's not correct. Since the Constitution gives Congress the power of determining which states are in the Union, it also gives Congress the power to determine which states are not in the Union. I see no basis for the last two sentences of the post.
 
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#10
For the sake of discussion, granted that Congress can consent to secession, I think Henry Clay, who was around at the time, was probably right in his opinion that with 60 days of peaceful secession, a war would break out over western territory and a militarized Underground Railroad.
 
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#11
Interesting implied power. If it became inconvenient to guarantee a republican form of government for a state, or became difficult to defend a state from a foreign invader, Congress could evade its explicit constitutional obligations by excluding a state, which could then be given up to a foreign country, or a prince! The explicit powers are much more tolerable than, because it is implied that they only apply when it is convenient.
 
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#13
Did anyone ever propose to kick out some offensive states? Maybe they did. But I am only aware of Congress adding states, never removing any.
 

GwilymT

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#14
Hi GwilymT, don't think we've talked before.

My question would be, where in the Constitution does Congress have that power?

As I see it there is simply no provision in the Constitution for states leaving the Union. Entering the Union, yes, but leaving, no. That would seem to indicate that only the sovereign people of the US can make the decision. This is also consistent with Texas v. White. Call them the people of the US, or the [collective] states, the matter, not having been addressed in our fundamental law, can only be handled by the sovereign, who holds the sovereign power to make, break, alter, and abolish our fundamental law. It is also, I believe, consistent with the Tenth Amendment, as I believe the phrase "or to the people" was added (to Madison's draft, upon reaching the Senate) to acknowledge the people's sovereign power over the Constitution, and the Union (nation) and government (Fed) it creates.
Hello CW Buff and thanks for your response.

While it is true that the removal of states from the Union nor secession are mentioned in the constitution the thinking of many of the framers was that the congress would be the area to arbitrate such. James Madison wrote, “A rightful secession requires the consent of the others, or an abuse of the compact absolving the seceding party from the obligations imposed by it.”. As @cash has pointed out, the constitution clearly gives Congress the right and authority to admit States to the Union and thus, in effect, authority over the makeup of the Union.

So, you are correct in that the constitution doesn’t explicitly grant congress purview over secession. However, given that the Union is “perpetual” and congress is given power over the makeup of the Union, when coupled with the comments of the Founders such as Madison above, it would seem that the only legal way for a state to secede would be with the consent of the congress or perhaps a convention of the various states.

Once the constitution was ratified, the various states were then subject to the Supremacy Clause. Therefore, any actions that would change the supremacy of the constitution in any state or the territory integrity of the United States would have to be approved of by either congress or the courts to be legal. We can comfortably say that unilateral secession without the consent of either congress or the other states is illegal.


“Let the thirteen States, bound together in a strict and indissoluble Union...” - Hamilton, The Federalist, #11
 
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Potomac Pride

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#15
To repeat, Article Four, in giving Congress the power over admitting new states, grants Congress the power over the makeup of the Union and hence the power to allow states to leave. It's an extension of the enumerated power to control the admission of states.
An enumerated power is a power that is specifically delegated in the Constitution. There is nothing in the Constitution which expressly forbids secession or requires a state to remain in the Union.
 

GwilymT

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#16
An enumerated power is a power that is specifically delegated in the Constitution. There is nothing in the Constitution which expressly forbids secession or requires a state to remain in the Union.
Perpetual.

per·pet·u·al
pərˈpeCH(o͞o)əl/
adjective
  1. 1.
    never ending or changing.
    "deep caves in perpetual darkness"
    synonyms: everlasting, never-ending, eternal, permanent, unending, endless, without end, lasting, long-lasting, constant, abiding, enduring, perennial, timeless, ageless, deathless, undying, immortal;More

Those States signed into a perpetual Union.
 

GwilymT

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#18
Thank you but I was already familiar with the definition of perpetual. Unfortunately, when the Constitution replaced the Articles of Confederation there was nothing in the document which stated that the Union was perpetual.
Absolutely. But as the Constitution was to replace and make stronger the national government than that existing under the Articles of Confederation, which instilled a “perpetual Union”, one can extrapolate that a “more perfect Union” would be perpetual. Your argument isn’t with me, it’s with Madison and Hamilton and the other founders.
 
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cash

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#20
An enumerated power is a power that is specifically delegated in the Constitution. There is nothing in the Constitution which expressly forbids secession or requires a state to remain in the Union.
The Constitution does not expressly forbid a state from legislating for the entire nation, yet we are agreed, I'm sure a state has no power to legislate for the entire nation because the Constitution grants legislative power to the Congress.

The Constitution, likewise, grants power over the makeup of the Union to Congress, and thus states have no power to decide what states are in or out of the Union, including themselves.

Do we agree that by the Constitution a state has no power to declare any part of the Constitution no longer applies to it?
 



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