State Sovereignty Question

jgoodguy

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Pending a definition of secession lets consider this one. Link
the act of separating from a nation or state and becoming independent​
Is the act of becoming independent prohibited by the Constitution?

Yes. Once this definition is accepted, then the prohibitions to secession are obvious. It is only by hiding the definition of secession that the prohibitions are also hidden. It is by hiding the obvious and concentrating on a single word without any relationship to what the word means; can any argument be mounted.
 

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wbull1

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I find the argument that because something is not specifically prohibited it must, therefore, be permitted logically wanting. As a psychologist, I had an exercise in which parents tried to encourage a specific behavior in a child, which the parents chose, by saying "no" to everything that was not that desired behavior. The result was that the specific behavior was impossible to achieve. There are a zillion wrong alternatives to any desired behavior. You can gradually get a desired unspoken behavior by specifying what you want or by encouraging behaviors increasingly like what you want. Perhaps the founders of the country by writing that the Articles of Confederation and the Constitution were both "perpetual," they specified what they wanted — an unbroken union. Perhaps they did not feel the need to write you cannot set up a state as an individual separate country or a county or a city or an incorporated area or your neighborhood or your house and on and on and on because they realized it is impossible to list all the variations of what is not acceptable. Maybe they put what they wanted in positive terms. Perpetual meaning perpetual.
 
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I find the argument that because something is not specifically prohibited it must, therefore, be permitted logically wanting. As a psychologist, I had an exercise in which parents tried to encourage a specific behavior in a child, which the parents chose, by saying "no" to everything that was not that desired behavior. The result was that the specific behavior was impossible to achieve. There are a zillion wrong alternatives to any desired behavior. You can gradually get a desired unspoken behavior by specifying what you want or by encouraging behaviors increasingly like what you want. Perhaps the founders of the country by writing that the Articles of Confederation and the Constitution were both "perpetual," they specified what they wanted — an unbroken union. Perhaps they did not feel the need to write you cannot set up a state as an individual separate country or a county or a city or an incorporated area or your neighborhood or your house and on and on and on because they realized it is impossible to list all the variations of what is not acceptable. Maybe they put what they wanted in positive terms. Perpetual meaning perpetual.
Understand your points. Just thinking here but after finally getting rid of the yolk of England.tossing that monkey off your back, so to speak, why would they ever sign up for something that they could eventually be in a similar situation again. Being an engineer it doesn't make logical sense. Could simply be that eventually the Lincolnian view .won out over the jeffersonian view, and right or wrong that may not have been the intent of the majority of the founding generation, or maybe it was.
 

CW Buff

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So in the end, thirteen independent, separate, and sovereign states ratified the Constitution. And each state ratified for itself, and for itself only.
Let's say, for a moment, that the states, which were fully sovereign prior to the Constitution, decided they wanted to create a union in which sovereignty is divided between the Union and the individual states. They were sovereign, so they could certainly do whatever they wished with their sovereignty. Sovereignty being what it is, the only legal transfer of sovereignty is a voluntary one, and the states being republican in nature, a majority of the people of each state would therefore have to approve the transfer of a portion of their sovereignty (that portion associated with the government powers enumerated in the to the Constitution) to the people of the US. In other words, the fact that "each state ratified for itself, and for itself only" says nothing about what the states were after they ratified the Constitution, but only what they were before.

You seem to like Madison, so here is one for you:

"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." -- James Madison, VA state ratifying convention, June 6, 1788

"At large," meaning as a whole, a sovereign whole, e.g. "We the People of the United States of America." Again, the Constitution, and the state (the more perfect Union) and government (the Fed) it forms, can only be altered 1) as specifically provided for in the Constitution; or 2) as the sovereign people who ordained and established it wish, acting via the constitutional amendment process. The Constitution has a designated method for adding states to the Union, it has none for deducting them. That is therefore a matter to be decided by the sovereign people of the US, i.e., "the people" as referred to in the Tenth Amendment.

Here's another one for you:

"The Constitution requires an adoption in toto, and for ever." -- James Madison to Alexander Hamilton, July 20, 1788
 

CW Buff

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Understand your points. Just thinking here but after finally getting rid of the yolk of England.tossing that monkey off your back, so to speak, why would they ever sign up for something that they could eventually be in a similar situation again. Being an engineer it doesn't make logical sense. Could simply be that eventually the Lincolnian view .won out over the jeffersonian view, and right or wrong that may not have been the intent of the majority of the founding generation, or maybe it was
Hi Greywolf. Got a little bout of insomnia too, do you?

My answer would be because of 1783-1787. After seeing how a union based on a treaty of confederation seemed to so clearly be a pending failure at maintaining the Union, why would they sign up for another union based on a treaty of confederation?

And the system they eventually settled on was only similar to the British system in a very general sense. Seems to me it was more different than it was similar. There would be no hereditary king, no parliament (a sovereign legislature in which about half as many people were represented in only one branch, the other branches being hereditary aristocrats), the system would remain a completely republican one, based on a written (proactive) constitution, with ample safeguards like separation of powers and multiple checks and balances, and representatives with limited terms of office, and the independent judiciary they had lacked in the British empire, and a more clearly defined (to the extent humanly possible) division of local/national authority. Given the conditions of the 1780s, why would they sit around and do nothing when their Union, which their success in the Revolution had depended on, and their continued independence and future prosperity would likely depend on, seemed in imminent threat of collapsing?

Also, consider this. Why add all those safety features if it remained a confederation based on a treaty in which the states retained full sovereignty and could book anytime they wanted to? That was 'a government of our choosing' v1.0. The problem 1783-1787 certainly wasn't that the confederation had prooven too overbearing and abusive, but that it had prooven to weak, inept, and incompetent. The solution ('a government of our choosing' v2.0) was to create a consolidated/indissoluble Union, and that's why they added all those ample safety features.
 

jgoodguy

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I find the argument that because something is not specifically prohibited it must, therefore, be permitted logically wanting. As a psychologist, I had an exercise in which parents tried to encourage a specific behavior in a child, which the parents chose, by saying "no" to everything that was not that desired behavior. The result was that the specific behavior was impossible to achieve. There are a zillion wrong alternatives to any desired behavior. You can gradually get a desired unspoken behavior by specifying what you want or by encouraging behaviors increasingly like what you want. Perhaps the founders of the country by writing that the Articles of Confederation and the Constitution were both "perpetual," they specified what they wanted — an unbroken union. Perhaps they did not feel the need to write you cannot set up a state as an individual separate country or a county or a city or an incorporated area or your neighborhood or your house and on and on and on because they realized it is impossible to list all the variations of what is not acceptable. Maybe they put what they wanted in positive terms. Perpetual meaning perpetual.
Good Points and I agree. The behavior of independent sovereignty for States is prohibited, the exact term does not have to be mentioned. I personally think of murder as a crime for an example. The statutes say something to the point that homicide is a prohibited activity, it does not say homicide by drowning, by poison, by ant bite, by smothering with feathers and so on. It is a word game with the point that because the word secession is not in the Constitution, then secession is permitted. As I posted earlier in this thread, had the word 'secession' appeared as a prohibited exit from the Constitution, the rebels of 1860 would have simply chosen another word.
 
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jgoodguy

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Understand your points. Just thinking here but after finally getting rid of the yolk of England.tossing that monkey off your back, so to speak, why would they ever sign up for something that they could eventually be in a similar situation again. Being an engineer it doesn't make logical sense. Could simply be that eventually the Lincolnian view .won out over the jeffersonian view, and right or wrong that may not have been the intent of the majority of the founding generation, or maybe it was.
I have had several threads where there was a conflict of States Rights vs Nationalists. First off the States Righters won with the AOC as the government. The result was a mess and with the States Righters in bad favor because of the mess they made, the nationalists won with the Consitution. There was a range of nationalism from loose to tight. The secessionists made a mess of things and the Lincoln view won. Later on, as problems arose and States Rights were unable to solve, then we see more power to the Federal Government. This is not unique to the US, maintaining a balance between effective government and tyranny is a constant struggle throughout history.
 

jgoodguy

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Let's say, for a moment, that the states, which were fully sovereign prior to the Constitution, decided they wanted to create a union in which sovereignty is divided between the Union and the individual states. They were sovereign, so they could certainly do whatever they wished with their sovereignty. Sovereignty being what it is, the only legal transfer of sovereignty is a voluntary one, and the states being republican in nature, a majority of the people of each state would therefore have to approve the transfer of a portion of their sovereignty (that portion associated with the government powers enumerated in the to the Constitution) to the people of the US. In other words, the fact that "each state ratified for itself, and for itself only" says nothing about what the states were after they ratified the Constitution, but only what they were before.

You seem to like Madison, so here is one for you:

"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." -- James Madison, VA state ratifying convention, June 6, 1788

"At large," meaning as a whole, a sovereign whole, e.g. "We the People of the United States of America." Again, the Constitution, and the state (the more perfect Union) and government (the Fed) it forms, can only be altered 1) as specifically provided for in the Constitution; or 2) as the sovereign people who ordained and established it wish, acting via the constitutional amendment process. The Constitution has a designated method for adding states to the Union, it has none for deducting them. That is therefore a matter to be decided by the sovereign people of the US, i.e., "the people" as referred to in the Tenth Amendment.

Here's another one for you:

"The Constitution requires an adoption in toto, and for ever." -- James Madison to Alexander Hamilton, July 20, 1788
Agree. For logistical reasons, The People of the United States voted by State because the infrastructure existed for that. The founders did not trust the legislatures to yield sovereignty because one legislative secession cannot bind another so they appealed to the ultimate sovereign, the people of that State. Because the People made the Constitutional Union, only the people can undo it.

Another interesting tidbit. It is not a new Union, but a consolidation of our Union.

The President of the Convention to the President of Congress, 17 September 1787

In all our deliberations on this subject we kept steadily in our view, that which appears to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existence, This important consideration, seriously and deeply impressed on our minds, led each State in the Convention to be less rigid on points of inferior magnitude, than might have been otherwise expected; and thus the Constitution, which we now present, is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable.
 

jgoodguy

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Hi Greywolf. Got a little bout of insomnia too, do you?

My answer would be because of 1783-1787. After seeing how a union based on a treaty of confederation seemed to so clearly be a pending failure at maintaining the Union, why would they sign up for another union based on a treaty of confederation?

And the system they eventually settled on was only similar to the British system in a very general sense. Seems to me it was more different than it was similar. There would be no hereditary king, no parliament (a sovereign legislature in which about half as many people were represented in only one branch, the other branches being hereditary aristocrats), the system would remain a completely republican one, based on a written (proactive) constitution, with ample safeguards like separation of powers and multiple checks and balances, and representatives with limited terms of office, and the independent judiciary they had lacked in the British empire, and a more clearly defined (to the extent humanly possible) division of local/national authority. Given the conditions of the 1780s, why would they sit around and do nothing when their Union, which their success in the Revolution had depended on, and their continued independence and future prosperity would likely depend on, seemed in imminent threat of collapsing?

Also, consider this. Why add all those safety features if it remained a confederation based on a treaty in which the states retained full sovereignty and could book anytime they wanted to? That was 'a government of our choosing' v1.0. The problem 1783-1787 certainly wasn't that the confederation had prooven too overbearing and abusive, but that it had prooven to weak, inept, and incompetent. The solution ('a government of our choosing' v2.0) was to create a consolidated/indissoluble Union, and that's why they added all those ample safety features.
Lots of good points. Had the AOC of independent States worked, we would have that. It did not work. That is the ultimate argument against secession, we tried sovereign States, sovereignty the prerequisite for secession and it did not work. To save the Union, the people who created the States, the States did not create themselves, changed the government to eliminate sovereign States.
 

CW Buff

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Another interesting tidbit. It is not a new Union, but a consolidation of our Union.

The President of the Convention to the President of Congress, 17 September 1787

In all our deliberations on this subject we kept steadily in our view, that which appears to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existence, This important consideration, seriously and deeply impressed on our minds, led each State in the Convention to be less rigid on points of inferior magnitude, than might have been otherwise expected; and thus the Constitution, which we now present, is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable.
I love that letter. In just a few words it explains exactly what they were reaching for, and how. Elements that, except maybe due to 1860-1865 (hindsight), would seem better left out of the Constitution itself. And no constitution should need to go through the basic concept of what a constitution is. In addition, that letter, and the memorandum on the proposed ratification process, were printed and distributed throughout the Union together with the Constitution. It's a shame the letter was forgotten in the shuffle. But, of course, they didn't have the internet back then.

On the issue of continuation vs new union, its both. "We the people of the United States, in order to form a more perfect union, . . . do ordain and establish this Constitution for the United States of America." The same guys who drafted that wrote the letter (people often attribute the letter to Washington, but he only signed it as the presiding officer of the Convention; a committee drafted the letter and the entire Convention approved it). They simply looked at it both ways. In a general sense the Union began before the states were even states. Specifically, there was a confederation, formed by the states in their political capacities, via a treaty (state compact); that failed; so they formed a new, more perfect Union, established directly by the people via a social compact (the people in their combined sovereign capacity, as it is all with all fundamental laws).

The question becomes one of context; what is it about the Union we are specifically discussing? There is both continuity (e.g. the part of the preamble I left out discusses the same basic goals of union that were always the object), and discontinuity (the complexion of unilateral secession changes completely from the old, less perfect Union to the new, more perfect Union; from a possible treaty violation to a definite violation of the law). So, context is everything; are we talking about unilateral secession after 1788/1789, in which everything hinges upon the particulars of the more perfect Union (the Union that was formed directly by the people); are we talking about the desire for perpetuity, which begins 1776 and continues to the present (provided by the specification of perpetuity in the AoCs, and the inherent perpetuity of constitutions in the case of the Constitution); or are we talking in a more general sense, because even if one or two states had remain apart after 1788/1789, the rest would still be talking about "our" Union that began 1774. Constitutional theorists/scholars speak of it either/or, depending on the focus. As did the Framers/Founders (though for the most part, perhaps except only that blurb in the Preamble, they spoke of it in the general sense).

Bottom line: They preserved the Union by forming a more perfect Union.
 
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Really, I am making a very reasonable request. You tell me a state may not sign treaties with foreign nations. How do you know? Well, you immediately point to the language of Article I, section 10. Fair enough. Now show me where Article I, section 10, says a state may not secede.
If a state may not form it's own military and sign a treaty with a foreign nations why does it make sense that there is a secessionist escape clause?
No case law supports your assertion that Secession is legal. There are antebellum cases prior to Texas v White that also address the issue that states are not sovereign entities. @jgoodguy has cited them in the past and can if he wishes list them again or send links. For example Luther v.Borden is often cited.
You and others have still not answered the question; if Secession is so obviously legal why didn't the secessionists appeal to the federal courts for protection instead if using violence to achieve Secession?
Leftyhunter
 

jgoodguy

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If a state may not form it's own military and sign a treaty with a foreign nations why does it make sense that there is a secessionist escape clause?
No case law supports your assertion that Secession is legal. There are antebellum cases prior to Texas v White that also address the issue that states are not sovereign entities. @jgoodguy has cited them in the past and can if he wishes list them again or send links. For example Luther v.Borden is often cited.
You and others have still not answered the question; if Secession is so obviously legal why didn't the secessionists appeal to the federal courts for protection instead if using violence to achieve Secession?
Leftyhunter
The argument is of the form of secession is not illegal therefore legal/permissible. US law being that not illegal is permissible is the framework for that. However there are problems with that, permissible is not the same as legal, because a legal activity has protections-for example putting a CBF in a window is legal because of first amendment protections, without that protection, a law enforcement or code enforcement officer could cite the owner of the window and order it removed. Secession has no protections. It is outside of the law. In the case of the 1860-61 secession, the secessionists performed illegal actions that had the color of insurrection or rebellion. When Lincoln dropped the hammer, the secessionists had no legal recourse. Had secession been constitutional, there would have been procedures in place to handle things like asset transfer before the fact.
 

OpnCoronet

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If a state may not form it's own military and sign a treaty with a foreign nations why does it make sense that there is a secessionist escape clause?
No case law supports your assertion that Secession is legal. There are antebellum cases prior to Texas v White that also address the issue that states are not sovereign entities. @jgoodguy has cited them in the past and can if he wishes list them again or send links. For example Luther v.Borden is often cited.
You and others have still not answered the question; if Secession is so obviously legal why didn't the secessionists appeal to the federal courts for protection instead if using violence to achieve Secession?
Leftyhunter


All of which proves to me, that the Constitution itself, prohibits Secession, as exercised in 1860-1861. Unilateral secession outside the authority and process of the Constitution, is by that fact alone, unconstitutional, i.e., unilateral secession would be Constitutional(Legal), only, if, it could be done without violating any of the clearly expressed powers of the Constitution.

Can the clearly expressed power in the Constitution be overruled by an unexpressed one, without adjudication? For instance, I would think, that any process of unilateral secession would violate Art. VI, Sec. 2. Can a State by its own volition, change the borders of the united States, fixed by Treat?
 

jgoodguy

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All of which proves to me, that the Constitution itself, prohibits Secession, as exercised in 1860-1861. Unilateral secession outside the authority and process of the Constitution, is by that fact alone, unconstitutional, i.e., unilateral secession would be Constitutional(Legal), only, if, it could be done without violating any of the clearly expressed powers of the Constitution.

Can the clearly expressed power in the Constitution be overruled by an unexpressed one, without adjudication? For instance, I would think, that any process of unilateral secession would violate Art. VI, Sec. 2. Can a State by its own volition, change the borders of the united States, fixed by Treat?
Our handy dandy tenth amendment has the answer.

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.​
Any power delegated to the Federal Government belongs exclusively to the Federal Government.
 

OpnCoronet

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Our handy dandy tenth amendment has the answer.

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.​
Any power delegated to the Federal Government belongs exclusively to the Federal Government.

Logically Reasonable.
 
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All of which proves to me, that the Constitution itself, prohibits Secession, as exercised in 1860-1861. Unilateral secession outside the authority and process of the Constitution, is by that fact alone, unconstitutional, i.e., unilateral secession would be Constitutional(Legal), only, if, it could be done without violating any of the clearly expressed powers of the Constitution.

Can the clearly expressed power in the Constitution be overruled by an unexpressed one, without adjudication? For instance, I would think, that any process of unilateral secession would violate Art. VI, Sec. 2. Can a State by its own volition, change the borders of the united States, fixed by Treat?
I am not a constitutional scholar nor are my Pro Confederate friends. It would appear that it would take a constitutional amendment to allow one or more states to secede from the United States the alternative being of course trial by combat.
To truly answer your question at least a majority of the population of a state would have to attempt to secede and then the Supreme Court would have to make the final decision on the legality of Secession and or just declare the matter was decided by Texas v. White.
Leftyhunter
 
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The argument is of the form of secession is not illegal therefore legal/permissible. US law being that not illegal is permissible is the framework for that. However there are problems with that, permissible is not the same as legal, because a legal activity has protections-for example putting a CBF in a window is legal because of first amendment protections, without that protection, a law enforcement or code enforcement officer could cite the owner of the window and order it removed. Secession has no protections. It is outside of the law. In the case of the 1860-61 secession, the secessionists performed illegal actions that had the color of insurrection or rebellion. When Lincoln dropped the hammer, the secessionists had no legal recourse. Had secession been constitutional, there would have been procedures in place to handle things like asset transfer before the fact.
A point I make to my Pro Confederate friends when I ask them if Secession is legal why didn't the secessionists appeal to the federal courts for protection. So far they are unable to answer that question but hope springs eternal.
Leftyhunter
 



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