Civil War Interactive Discussion Board Home
Home Search search Menu menu Not logged in - Login | Register


The Legalities of Seccession - General Civil War Talk - Civil War Talk - Civil War Interactive Discussion Board
 Moderated by: javal1 Page:    1  2  Next Page Last Page  
 New Topic   Reply   Printer Friendly 
 Rating:  Rating
AuthorPost
 Posted: Thu Apr 20th, 2006 02:11 pm
   PM  Quote  Reply 
1st Post
javal1
Grumpy Geezer


Joined: Thu Sep 1st, 2005
Location: Tennessee USA
Posts: 1503
Status: 
Offline
Mana: 

  back to top

We'll use this thread for the ongoing discussion started elsewhere. Because we have no way of transferring posts from one thread to another, here's the converation so far:

Shadowrebel: Indy,

There are descendants of the crew alive today and went to the burial. We are not talking about the Confederate flag, but the U. S. flag. Please re-read my post you used.


The Confederacy was a soverign country. It had every right to secede from the union, i.e. the 10th amendement to the Consitution and the Declaration of Independence. After the war Samual Chase, a Supreme Court Chief Justice, stated it would be a mistake to bring Jefferson Davis to trail because you might find out the South had a right to secede and was soverign nation.

If as you state the Rebels were "traitors" then when did we start using the American flag at the funerals of traitors? Using the American flag in the manner would by a large thing to ask not  "a small thing to ask".

Thank you for you comments

Regards

John



Indy: I used your post to bring up a dialogue. This thread has gone in all different directions. I asked legitimate questions that I didn't have the definitive answers for. I assume that there were no restrictions at the ceremony for Confederate flags. The subject of flying or not flying an American flag there, led me to wonder if there were restrictions on anything else. And as far as I know, each member of the crew, could in fact, be buried with a Confederate flag.

I'm not sure what you mean by "using" the American flag at the ceremony. I think we'll have to agree to disagree about that issue.

Secondly, the Confederate States of America was NOT a sovereign nation. They were never recognized as separate by the U.S. federal gov't. They never received foreign recognition. That recognition was required for the CSA to be considered a separate nation.

I don't believe you have your facts straight about Salmon Chase either, but I'm not going to get in a long discussion about it, nor about how the 10th Amendment does NOT grant the right to secede. I've still not heard of anyone that's been able to point out in the Constitution the procedure a state must go through in order to secede. If a state can just up and leave the union, at their whim, it seems hard to believe that we really have a legitimate republic.
Shadowrebel:   Indy,

I meant no disrespect to your use of my post. I thought you misunderstood it. Sorry.


 I agree this thread has gone in different directions. Which is not bad. You are right they were buried with the Confederate flag. Some family members did not what the U.S. flag used at the burial. This is not a frist. Many other war dead were buried without the U.S. flag being present. It should be up to the families. This is what I meant by using the American flag.

 I was unaware that for a nation to be soverign the U.S. govt. had to recognize it. The government has at times not recognize many nations. Nor does any nation have to recognize a nation to make it soverign.

 Justice Chase: Jefferson Davis refused to request a pardon because he wanted a public trial to prove that the Constitution provided for secession. S. Chase, Supreme Court Justice, said "we better not. A trial might conclude that the north invaded a sovereign nation." He may not have be Chief Justice at this time.

As I am sure you are aware, if the Constitution does not specify something it is a State right. Amendment 10 - Powers of the States and People. 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.

Since secession is not covered by the Constitution no one can show you the procedure to secede. No one has shown me what stops a state from seceding. Since secession is not covered in the Constitution it is reserved as a state right, therefore it is up to the state to decide how to implement its' right, not the Constitution to tell the state how to secede. Most, if not all, the states that agreed to the creation of the Federal govt. and the Constitution did so with a clause to the effect the power of government could be taken back by the people. New York, in her resolutions of ratification, declared -- "That the powers of government may be resumed by the people, whensoever it shall become necessary to their happiness:

Thank you for your post.

Savez:  Ulysess,

Here is a review about the author of one of your sources.

link

Didn't Nathan Bedford Forrest leave the Klan and ordered it disbanded when it became violent? I have read somewhere, I can't recall, that his wife had something to do with him leaving the Klan.


Also, Eric Foner is a leftist, Marxist weirdo.

Indy: With the Supremacy Clause already in place in the Constitution the 10th Amendment hardly gives states the right to secede. Even if it did, can you show me where it's mentioned in the Declarations by the states that separated? I'm not even sure that the term secession was even used. IMO, if it were clear that states had a right to separate, it would be clearly written into the Constitution. The only way out I see is through the Amendment process and with, I believe a 3/4 favorable vote of ALL the states. The southern states did not try any of this, they just up and left, making it seem as though our Union, our United States, is nothing more than a loose collection of states.


Chase's opinion was that Davis had already been punished for his actions, thus any other trial would be unconstitutional. Not to mention the fact that Davis would have to be tried in Virginia or possibly in Alabama and with a jury full of Virginians or Alabamians.


Though post-war 1869, the case of White v. Texas ruled against the legality of secession. It's the only Supreme Court case to make such a judgment. The fact that is was post Civil War is probably moot, as nothing had changed in the Constitution from 1860-1869, save for the 13th and 14th Amendments. Since Salmon Chase was Chief Justice at this time, it seems that would run counter to what you are trying to say.



 Posted: Thu Apr 20th, 2006 05:08 pm
   PM  Quote  Reply 
2nd Post
MAubrecht
Member


Joined: Wed Sep 7th, 2005
Location: Fredericksburg, Virginia USA
Posts: 143
Status: 
Offline
Mana: 

  back to top

Thanks for moving this thread.

I am curious to know if anyone has read the Kennedy's book "The South Was Right". I have not, but I understand that it presents an argument for legal secession? Is this true? If so, I'm curious to hear what they say.

Also, I was VERY saddened by the article posted on the CWi site today about the political decline of the SCV's membership and administration due to a "radical racist" agenda. Now, the article was posted on the Southern Poverty Center website (who I am unfamiliar with) and ultimately presented a single point of view, but was VERY well researched and written. Therefore, IF it is true - it is a real shame.

I know that many SCV supporters (myself included) do not share this radical ideology, and it makes it EXTREMELY difficult to "stand up" for them (and the flag), when this is what the public perceives.

It's like being a member of the Republican party and trying to stick up for GW Bush - I tried for years and I just can't do it anymore. He keeps proving me wrong. Hope the SCV doesn't follow his lead. NOTE: sorry to get political - not my intention - AND I don't want to take that road. I just thought that it made a good analogy :D

Last edited on Thu Apr 20th, 2006 05:10 pm by MAubrecht



 Posted: Fri Apr 21st, 2006 12:16 am
   PM  Quote  Reply 
3rd Post
Shadowrebel
Member


Joined: Tue Sep 13th, 2005
Location: Old Forge, Pennsylvania USA
Posts: 71
Status: 
Offline
Mana: 

  back to top

MAubrect,

I have read the "South Was Right". They cite John Milton, "The Father of Secession" and John Locke in Chapter 7 pages 185 to 193. In Chapter 8 pages 195 to 217 they try to answer the critics using what they say are seven Yankee myths and  present agruments against the myths. These are too long to go into in this post. It is an interesting book, however keep in mind it is written from a Southern point of view. At Borders a few years ago I saw a book called "Jefferson Davis Was Right" also by the Kennedy's, they actually wrote several book which you can find at their website. I should have bought it and must look into getting it.

Here is a link to a "A Plausible Lie" by Dennis Wheeler which is a rebuttal to "The South Was Right" I hope you find it helpful. http://www.mindspring.com/~dennisw/articles/kennedy/

Hope this helped.

Regards

John



 Posted: Fri Apr 21st, 2006 01:00 am
   PM  Quote  Reply 
4th Post
Shadowrebel
Member


Joined: Tue Sep 13th, 2005
Location: Old Forge, Pennsylvania USA
Posts: 71
Status: 
Offline
Mana: 

  back to top

Can anyone show me where in the Constitution it forbids a state from leaving the Union?

Indy,

As to your reply to my post in the flag thread:

Chase: 
In making his ruling Chase ignored many of the legal arguments that had bearing on this case.

First, the Articles of Confederation had been superceded by the Constitution. The ratification of the Constitution had dissolved the "perpetual Union". Chase also ignored the larger problem that the ratification of the Constitution initiated a secession from the government created by the Articles. Even though only nine States needed to ratify the Constitution for it to become part of "the supreme law of the land", the Articles could only be altered by the approval of all thirteen States! Thus, when nine States had ratified the Constitution and put aside the Articles in favor of the Constitution this was an act of secession.

Second, it had never been assumed that the preamble was legally binding, but simply a statement of the intent of the Constitution. Thus, the preamble recognized that the Constitution was an attempt to form a more perfect union, but it did not legislate that "more perfect Union" as law.

Third, Chase stated that the seceding states had forfeited their rights, but not their obligations. He never addressed the question of how this could be if, as he contended, the States had never left the Union in the first place. If the Confederate States had never left the United States they would still retain all their obligations (White v. Hart) and all their constitutional rights. The doctrine of lost rights with retained obligations was a concept of the Radical Republicans created by them to reconstruct the South in their own image.

Fourth, Chase never addressed the fact that earlier Supreme Court decisions had declared Confederate State governments de facto governments (Thorington v. Smith, Delmas v. Insurance Co., and Mauran v. Insurance Co.) in all acts that did not further the aims of the rebellion. While he could have argued that acts supporting the secession could be punishable as treason (art. III, sec. 3) he never did. Interestingly, while these acts might have been considered treasonable, that did not in and of itself prove them to be unconstitutional (Yet another can of worms that Chase chose to ignore). Also, even though States were forbidden to "engage in War", the Constitution contains an exception in the cases of actual or threatened invasion (art. I, sec. 3). While Chase could have argued that the invasion clause did not apply to federal troops seeking "to enforce constitutional law" he did not.

Fifth, Chase never addressed the constitutional question of the legality of secession, just declared it illegal. An interesting argument in favor of the right of secession can be found in "A View of the Constitution of the United States", by William Rawle.

Chase basically ignored all previous case law and the supremacy clause, and accepted without supporting argument the standard Radical view of a one-sided secession: The Southern states had lost their rights, but not their obligations. Although Texas had not left the Union, it had forfeited its right to sue. This was a pretty shaky thesis; if Texas was still a State, article III give it the right to sue. Justice Grier, the lone dissenter, protested, saying that if Texas had not left the Union, it had the power to repeal its own laws. Chase and company couldn't accept that line of reasoning without destroying the Reconstruction Act.


The post war time frame is indeed important and not a moot point as you contend. After the war the Radical Republicans fairly much did as they please this is well documented. His opinion to Davis being punished had no bearing on his being tried. Davis could contend he was punished without a trial is a far better reason to try him. Consider that Davis was charged with treason his being strip of his right to vote seem like a light punishment.
http://jeffersondavis.rice.edu/faqs.cfm 

Your contention that this was the only ruling on secession is not quite accurate; see section four that ruled the Confederate State were government thou be it de facto.

The Supreme Law of the Land refers to any other governing body making laws contradicting the Constitution. I am not sure I get your connection to this overruling the 10th amendment since there is no mention of states not being able to leave the Union anywhere in the Constitution.

Here are is a link to the articles of secession for Southern States: 
http://www.civil-war.net/pages/ordinances_secession.asp  You will see the words secession and secede used.

The United State was formed a compact of the states:

1.) The Independence of the States -- In the first place, each State was, at the time of the adoption of the Constitution, a sovereign and independent State, and acted as such in adopting the Constitution. This is manifest -- from the Declaration of Independence, which proclaims the several States to be "free and independent States" -- from the second of the Articles of Confederation of 1778, which declares that "each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not thereby expressly delegated to the United States" -- from the treaty of peace with Great Britain, after the close of the war of the revolution, recognising each State by name as a "free, sovereign and independent State" -- and finally, by the sanction of the Supreme Court of the United States, in the early history of the Union, in the case of Ware vs. Hylton, 3d Dallas' Rep., 199, in which it is held by Judge Chase, that the effect of the Declaration of Independence was "not that the united colonies jointly, in a collective capacity, were independent States, but that each State of them was a sovereign and independent State" -- a doctrine recognised by numerous subsequent decisions of that Court. (SECESSION: CONSIDERED AS A RIGHT IN THE STATES COMPOSING The Late American Union of States, AND AS TO THE GROUNDS OF JUSTIFICATION OF THE SOUTHERN STATES IN EXERCISING THE RIGHT.)

2.) The Federal Constitution a voluntary Compact between Sovereign States -- In its nature and character, the Constitution was a compact between the States, and the Union formed under it, was Federal. This is clear, from the following considerations:

(1.) It was formed by the States acting in their political capacities, and not by the aggregate mass of the people of all the States; and it was ratified and acceded to in the same manner by each State for herself; those not acceding to it being wholly free from its operation and remaining independent sovereign States.
(2.) It declares, in the 7th article, that the ratifications of the Conventions of nine States should be sufficient to establish it "between the States" so ratifying it -- which clearly shows that the States as such were the parties to it, and that it was a compact between them as such.
(3.) Amendments to it are to be acted on by each State in her political capacity, by her Legislature, or by a convention appointed by her and under her own laws, each acting separately.
(4.) The powers not delegated are reserved to the States or to the people, by the 10th amendment--that is, to the States, so far as their exercise may be matter of political power; and to the people of each State, so far as the same may be matter of individual right, under the Constitution and laws of the State.
(5.) It was denominated a Federal Constitution by its advocates in recommending its ratification --(see Federalist passim)-- the Union formed by it was called a Confederate Republic --(Federalist, No. 9)-- and it was characterized, in the more essential and controlling points of the foundation and the extent of its powers, as Federal; while in the minor matter of the execution of its granted powers only, it was said to be national.--Federalist, No. 39. It was received in popular acceptation and called a Federal Constitution -- an idea so universally received and so popular that it was assumed as the name of the great party which came into power upon the organization of the government, and held it until that party proved to entertain principles and views subversive of the true spirit of the Constitution, and in the meantime laid the foundation of doctrines which have led to its prostration.
(6.) It was received and adopted by the States as a compact between each other. While this is manifest from the history of the ratifications of all the States in their conventions, it is expressly stated in the ratifications of Massachusetts and New Hampshire, and was, in a few years thereafter, also expressly declared by Virginia, Kentucky, and several other States, in the memorable contest which arose upon the alien and sedition laws in 1798.


As to no one recognizing the Confederate State:
Recognized internationally only by Saxe-Coburg and Gotha, though recognized by some nations as a "belligerent power".
There were several Indian tribes (recognized by the U.S. govt, by treaty, as soverign nations) to recognize and several tribes join the Confederacy.

Thank you for you reply

Regards

John


Last edited on Fri Apr 21st, 2006 01:11 am by javal1



 Posted: Fri Apr 21st, 2006 05:23 pm
   PM  Quote  Reply 
5th Post
David White
Member


Joined: Tue Sep 6th, 2005
Location: Texas USA
Posts: 909
Status: 
Offline
Mana: 

  back to top

It is my opinion that the legalities or illegalities of seccession are something not defined in the constitution and as a result had to be decided and have been by force of arms in an extralegal manner.  However, it is my opinion that the Founding Fathers did not even contemplate the possibility and that is why it was not properly addressed by them.  But using the natural logic of their legacy one may see their intent.  Under the Articles of Confederation, a looser confederacy of the states, it took the unanimous consent of all the states for one state to leave the Union.  Does it make since that the document that was intended to form a more "Perfect Union" would have even looser requirements than a Confederacy?  I don't think so, if it were, I believe they would have spelled out the proper legal process in more detail like they did with the AoC.  I hardly think the intent was for the collective government to have less to say in events of such importance to the fate of the nation, than just one state.

I always thought Lee had it right on 23 January 1861 when he wrote to his wife saying:

Secession is nothing but revolution. The framers of our constitution never exhausted so much labor, wisdom, and forbearance in its formation, and surrounded it with so many guards and securities, if it was intended to be broken by every member of the Confederacy at will. It was intended for perpetual union  so expressed in the preamble, and for the establishment of a government, not a compact, which can only be dissolved by revolution, or the consent of all the people in convention assembled. It is idle to talk of secession. Anarchy would have been established, and not a government, by Washington, Hamilton, Jefferson, Madison, and the other patriots of the Revolution.

Too bad he didn't have the power of his convictions and caved to insanity.  That is one reason I won't put him up on a pedestal.



You have chosen to ignore Savez. click Here to view this post


 Posted: Fri Apr 21st, 2006 06:04 pm
   PM  Quote  Reply 
7th Post
MAubrecht
Member


Joined: Wed Sep 7th, 2005
Location: Fredericksburg, Virginia USA
Posts: 143
Status: 
Offline
Mana: 

  back to top

caved to insanity
Yes please explain...



 Posted: Fri Apr 21st, 2006 06:26 pm
   PM  Quote  Reply 
8th Post
David White
Member


Joined: Tue Sep 6th, 2005
Location: Texas USA
Posts: 909
Status: 
Offline
Mana: 

  back to top

If he truly believed the Union was perpetual he never should have joined forces with the south.  Not saying he joins the Union cause but at least he sits it out or better, gives a public voice to his convictions to try to avoid the slaughter to come for a cause he believed was misguided.



 Posted: Fri Apr 21st, 2006 07:30 pm
   PM  Quote  Reply 
9th Post
MAubrecht
Member


Joined: Wed Sep 7th, 2005
Location: Fredericksburg, Virginia USA
Posts: 143
Status: 
Offline
Mana: 

  back to top

David, I think that you are forgetting that at the time duty to one's state (over one's country) was much more accepted (and in some cases, expected) than in today's society. Your state (heck your town) may have been your entire world - so to speak. I would like to think that that type of loyalty and virtue still exist to some extent. I know that if the U.S. Government ever wanted to march troops into Virginia again (or any state for that matter) in order to force an administrations policy on them (against their will) that her neighbors would surely take up arms in order to protect their fellow neighbors.

For a man with Lee's background and experience, there was no option. He had an honor and sense of duty and to choose to take command of the Union army (as offered) or "sit it out" would have been tremendously unpopular. How could he ever go home and face his fellow Virginians? He and many CSA commanders were Union men and they did not enter the war with a light heart or lack of conscience. It had to be a terrible dilemma, but you have to applaud their convictions. They would not march or fire on their own people. Also I believe that revolution and reform are both necessary from time to time in order to keep society in line. Was it not Jefferson who said something like "the tree of liberty must be watered from time to time with the blood of patriots." (or something similar). I firmly believe that the founding fathers DID NOT want dominating, big governments pushing people around (like in England). 

Therefore REAL patriots are not a "Kool-Aid drinking citizens who obey the government on blind faith alone" - it is a rebel, a radical and one who is willing to stand up and die for a cause. Our founding fathers were rebels and "seceded" from England. So there is a similarity there to the Confederate States of America. All I can say is that if the U.S. Government ever turns its troops and guns on her own people (for any reason) I pray that we have some patriots (still hanging around) who will rise up and fight against a tyrannical ruler. I pray that never happens, but it is possible with a 2-party political system that has been blemished, corrupted, broken and is ultimately dysfunctional.

Last edited on Fri Apr 21st, 2006 07:41 pm by MAubrecht



 Posted: Fri Apr 21st, 2006 07:46 pm
   PM  Quote  Reply 
10th Post
javal1
Grumpy Geezer


Joined: Thu Sep 1st, 2005
Location: Tennessee USA
Posts: 1503
Status: 
Offline
Mana: 

  back to top

Straying off topic with this, but I have to add:

MAubrecht, you said "I know that if the U.S. Government ever wanted to march troops into Virginia again (or any state for that matter) in order to force an administrations policy on them (against their will) that her neighbors would surely take up arms in order to protect their fellow neighbors."

Isn't that precisley what happened in Little Rock and elsewhere during de-segregation?



 Posted: Fri Apr 21st, 2006 07:51 pm
   PM  Quote  Reply 
11th Post
David White
Member


Joined: Tue Sep 6th, 2005
Location: Texas USA
Posts: 909
Status: 
Offline
Mana: 

  back to top

Not forgeting a thing.  Are you saying "my state (vs. country) right or wrong" trumps deep felt convictions about what is correct?  Or, oh no, everyone expects me to fight, there go my principles?  You make Lee sound like a certain ex-president, who he certainly shines greater than in my esteem.  Lee's opinion of seccession is pretty plain in that quote, to say he acted on his convictions when he acted contrary to that stated conviction really is spinning on your part, especially when you throw in the part about not wanting to offend public opinion--That's not conviction.

BTW, based on that Lee quote, he would not quibble with calling it the War of Rebellion, no? 



 Posted: Fri Apr 21st, 2006 08:24 pm
   PM  Quote  Reply 
12th Post
MAubrecht
Member


Joined: Wed Sep 7th, 2005
Location: Fredericksburg, Virginia USA
Posts: 143
Status: 
Offline
Mana: 

  back to top

You both have points - I'm not arguing there. But what I am saying is that if a President and his administration EVER decided to ignore the people's voices and desires and use troops in order to enforce a policy - no matter what policy - people of a given state would be absolutely "justified in standing up to them." Of course that is based on the circumstances. I am a bigger supporter of responsible local and state governments (state's rights) than I am of the federal government telling us all what to do. Big government should rule the security, global economics, health and safety, and immigration issues for the whole country and the rest should be handled by the local governments (in my opinion).

If you can't tell, I am a disgruntled Republican conservative, who finds himself lining up more and more with the Libertarian ideology nowadays. So, I can see "exactly" what the secessionists thought in many regards. Like if the U.S. government ever decided to follow Australia's lead and take the guns off the people. Then the only people walking around with guns are criminals. That is an example of a bad decision that leaves a country's citizens unprotected, vulnerable and totally dependant on a ruling power. I'm no political science major here so I apologize if I am not explaining my rational clear. The bottom line is that a country's citizens should not have their own troops turned on them for an agenda. That is called China - not America.

Lee, Jackson, Stuart etc. were all Virginians who would not participate in this type of action against their fellow Virginians. Look at Iraq, there are hundreds (perhaps thousands) of our men and women in uniform - who do not necessarily support Bush or his administration - yet they do their duty and risk it all for the Commander and Chief's agenda. That is putting one's duty to country (or state in the CW) before your own personal opinions and they are to be applauded for that. (once again - just my opinion).

I am by no means an expert on seccession or anything political - but I can see "where they are coming from" and understand why I would be more apt to defend VA.

Last edited on Fri Apr 21st, 2006 08:49 pm by MAubrecht



 Posted: Fri Apr 21st, 2006 08:51 pm
   PM  Quote  Reply 
13th Post
David White
Member


Joined: Tue Sep 6th, 2005
Location: Texas USA
Posts: 909
Status: 
Offline
Mana: 

  back to top

MAubrecht:

I concur with everything you say in that post.

Even the Confederacy didn't believe in the "right of seccession."  Otherwise they would not have resisted the secession of Jones County, MS during the war, among other acts of rebellion within the Confederacy.  Secession is anarchy, especially if you take it to the lowest denominator (Me and what I want), therefore it cannot be tolerated IMO.



 Posted: Fri Apr 21st, 2006 08:54 pm
   PM  Quote  Reply 
14th Post
MAubrecht
Member


Joined: Wed Sep 7th, 2005
Location: Fredericksburg, Virginia USA
Posts: 143
Status: 
Offline
Mana: 

  back to top

That is true. This discussion has spawned an interest in me to read more into this aspect of the conflict. Obviously, it is a tremendously complicated matter with many twists and turns. Like I said, I'm not a political analyst, but I can see the duty to defend your homeland. Thanks.



 Posted: Sat Apr 22nd, 2006 01:19 am
   PM  Quote  Reply 
15th Post
Shadowrebel
Member


Joined: Tue Sep 13th, 2005
Location: Old Forge, Pennsylvania USA
Posts: 71
Status: 
Offline
Mana: 

  back to top

David,

Maybe the Confederacy did not believe in "right of secession, I disagree, however here is someone who did believe in it.         The revolutionary right of secession is based on the Declaration of Independence and the philosophy of Thomas Jefferson and John Locke, that

whenever any form of government becomes destructive of the ends for which it was established, it is the right of the people to alter or abolish it, and to institute new government, . . .
These words come directly from the Declaration of Independence. This passage was also used, verbatim, in South Carolina's Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union.

Jefferson used much of Locke's views in drafting the Declaration of Independence.

One other person who had an ultimate interest in the Civil War held a similar opinion: A similar sentiment was expressed by Abraham Lincoln in 1847 on the floor of the United States House of Representatives: Any people, anywhere, being inclined and having the power, have the right to rise up and shake off the existing government, and form a new one that suits them better. This is a most valuable, a most sacred right, a right which we hope and believe is to liberate the world.2   

    2Abraham Lincoln, 1847 Congressional debate in the United States House of Representatives in John Shipley Tilley, Lincoln Takes Command (Nashville: Bill Coats, Ltd., 1991), xv. Tilley's source, as stated in footnote #4 on page xv, was Goldwyn Smith, The United States: an Outline of Political History, 1492-1871 (New York and London, 1893), 248.


Seems Mr. Lincoln had a change of heart four years later. If  Mr. Jefferson, who penned the Declaration of Independence, and Mr. Lincoln, a lawyer and President, were of the opinion that there was a right of secession what is there to agrue about?

Add the fact that most, if not all, the thirteen colonies in their ratification of the Constitution state that they reserve the right to resume the power of government. Again I am waiting for someone to show me where in the Constitution secession is forbiden. If it is not in there it is a States right since anything not granted the Federal government in the Constitution is reserved to the States.

Regards

John

 



 Posted: Mon Apr 24th, 2006 03:56 pm
   PM  Quote  Reply 
16th Post
David White
Member


Joined: Tue Sep 6th, 2005
Location: Texas USA
Posts: 909
Status: 
Offline
Mana: 

  back to top

ShadowRebel:

You'll get no argument from me on what you said overall.  I think I indicated in my original post that secession can only occur through extralegal means.  That is what the Locke and Lincoln quotes refer to.  It is not some legal right granted by a statement or omission in the Constitution, but an unwritten right that we all have to change our government when it it wrong and  by force if necessary and the government error is extreme.  But you better win your act of rebellion to be "correct."  This thread asked about the legal right to secession in the US Constitution and there is none and a study of the Founding Father's intent comes down on there is no right either, IMO.

I am curious about one thing you wrote, if the Confederacy believed in a right to secession, why did they attack Jones County Mississippi when it seceded?  On what grounds could they not separate themselves from the Confederacy, if one believes secession is a "legal" right? 

Also nowhere in the Constitution does it say the Federal Government may dissolve the United States so does that mean we should fear that the legislature of Louisiana may do that?  The 10th Amendment was not written to allow the states to affect and impact the overall nation but to make sure they ran their internal affairs properly and uninhibited.

 

Last edited on Mon Apr 24th, 2006 04:03 pm by David White



 Posted: Tue Apr 25th, 2006 02:26 am
   PM  Quote  Reply 
17th Post
Shadowrebel
Member


Joined: Tue Sep 13th, 2005
Location: Old Forge, Pennsylvania USA
Posts: 71
Status: 
Offline
Mana: 

  back to top

David,

Thank you for your post. I agree that if you are going to use rebellion to make change you had better win. I think we are using different thinking concerning this issue. I think 1861 and back while I think others (correct me if I am wrong that you are one of them) here think modern day when we deal with this issue. Before the war the states had more power then the federal govt. During and after the war the federal govt. took power they did not have a right to. When the Constitution was accepted the states granted the federal govt. it's power with the states all stating that they could take back their power from the federal govt. when ever they felt it neccessary. This is where they get their right of secession.

As to Jones County: The states formed the federal govt. by giving it certian powers with only land donated by Maryland and Virginia (this was returned to Virginia in 1846) comprising it's land. A state in one form or another charters a county, town, city, or any other local govt. to use their land by the local people without giving up the right to the land. Therefore, when a state wants to leave the Union it is only taking back the powers it gave the federal govt. and no land. When a chartered portion of a state wants to secede from a state it wants to take land it has not right to. That is the difference between states leaving the Union and a portion of a state leaving a state. This is how Mississippi could stop Jones County from leaving the state.  Can New York City leave the State of New York to join Pennsylvania?

The federal govt. can not make a state leave the Union because the states formed the federal govt. by giving it it's powers. A state by it's forming the federal govt. by a compact with the other states and approval of the Constitution with conditions attached, one of which was the right to take back it's powers when it felt it necessary to do so. The 10th amendment was written to prevent the new govt. from taking powers it had no right to take, which is why it is written the way it is.

Amendment 10 - Powers of the States and People
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.

Note well this. Anything not expressly granted to the Federal government is reserved for the States or the People. Although this amendment is very liberally interpreted, it is one of the tenets of the Constitution. This amendment is also known as the States' Rights Amendment.

Since secession was not mentioned in the Constitution anywhere it remains a state right, it did not need to be addressed in the Constitution since the states only appoved the Constitution with the right to take back it's power granted the federal government. I feel this gives them to legal right to secede since the Constitution was approved with the condition of taking back states powers.

I see nothing in this that indicates that is was written to stop a state from leaving the Union or impacting the Union in any way or to make sure they ran their internal affairs properly and uninhibited.

Sincerely

John



 Posted: Tue Apr 25th, 2006 03:32 am
   PM  Quote  Reply 
18th Post
Tigerreb
Member


Joined: Mon Sep 5th, 2005
Location: California USA
Posts: 15
Status: 
Offline
Mana: 

  back to top

Quote From Indy: " Secondly, the Confederate States of America was NOT a sovereign nation. They were never recognized as separate by the U.S. federal gov't. They never received foreign recognition. That recognition was required for the CSA to be considered a separate nation. "

I do believe that the CSA was recognized by Spain and the Papal States.  Am not sure of any others. And one of the reasons for the Emancipation Proclamation was to preclude recognition by England and France.

JIMT




 Posted: Tue Apr 25th, 2006 03:22 pm
   PM  Quote  Reply 
19th Post
David White
Member


Joined: Tue Sep 6th, 2005
Location: Texas USA
Posts: 909
Status: 
Offline
Mana: 

  back to top

ShadowRebel:

Interesting legal argument, so why did the South resort to force of arms and not file a court case with, what I might add, was a sympathetic supreme court?  Wasn't the firing on Ft. Sumter an attempt by the Confederacy to take back land that belonged to the Federal Government, other than DC, so your premise that they were not taking back land from the Federals is incorrect?

I know with contracts you cannot put conditions in a cover letter that change or add conditions that differ from the intent of the signed contractual document and I would assume common law would apply the same notion to forming nations, therefore if the states wanted the right to withdraw, it was incumbent on them to get such language in the final deal that was signed and as we know, their right to withdraw from the Union is not explicitly stated in the Constitution.

Under the logic of your position and many of the founding fathers of the Confederacy who talked about "Free Association," I would say that NYC does have the right to choose who they will associate with and could vote to leave NY State for PA.  But that is not my position.

Why do you think it was harder to get out of the US under the AoC than under the more "Perfect Union" of the Constitution?  Can you cite some Founding Father's writings that indicate the idea of states leaving the Union was a likely occurrence?  I've looked for and never found discussions about it in the Federalist papers and other similar writings.

Also explain to me how Louisiana cannot dissolve the United States, even if the other 49 want to stay together, since it is obviously not a right of the Federal Government, it must be one left to the individual states to decide.  Is the US dissolved on that one state's decision?  Must Barksdale AFB be handed over to Louisiana?  The aircraft paid by all the taxpayers (most not from Louisiana)?  Do we put it to the vote of all the states?  What happens if 26 states vote for dissolution and 24 say no or vice versa?  Or does it take the consent of 2/3rds of the states?  What do you think the legal process for dissolving the United States is? 



 Posted: Tue Apr 25th, 2006 10:34 pm
   PM  Quote  Reply 
20th Post
Shadowrebel
Member


Joined: Tue Sep 13th, 2005
Location: Old Forge, Pennsylvania USA
Posts: 71
Status: 
Offline
Mana: 

  back to top

David,

The states voluntarily joined together to created and join the federal government, if you voluntarily join something do you not have the right to leave when you wish? You still have not shown me where in the Constitution there is anything stating that a state can not leave. It is still not in there today that a state can not leave the Union. Again if it is not in the Constitution it is a states' right. I would not expect to find in the Constitution what the states keep as a states' right i.e. a state can leave the Union. On what legal grounds regarding the Constitution would the southern states file a court case? There is nothing in the Constitution preventing them from leaving, so why file with the courts. The better question would be why did not the federal govt. not file a court case to pervent the southern states from leaving? Since the govt. felt the states had no right to leave they should have filed with the courts, not the states that felt they had a right to leave.

The Declaration of Independence is all you need to look at for writtings of the founding Fathers to see they clearly felt you could throw of you govt. if you felt the need. Article two of the AoC Article II. Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled. There is no mention of not being able to leave the firm league of friendship with each other. John Adams:

June 21, 1776
"Statesmen, my dear Sir, may plan and speculate for liberty, but it is Religion and Morality alone, which can establish the Principles upon which Freedom can securely stand.

"The only foundation of a free Constitution is pure Virtue, and if this cannot be inspired into our People in a greater Measure, than they have it now, they may change their Rulers and the forms of Government, but they will not obtain a lasting liberty.

Thomas Jefferson: "The strongest reason for people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government."

-Thomas Jefferson Papers, 334 (C.J.Boyd, Ed., 1950)

Fort Sumter was an unfinished fort that was on land belonging to South Carolina, which want to reclaim their land. The federal govt. had no claims to any land in the 1860s. but the land donated for the capitol.

The preamble to the Constitution is only a cover letter and there is no mention of a "more perfect union" in the Constitution itself therefore with your agruement a more perfect union is not legal entity. You can still have a more perfect union if states leave the union, I do not see what a more perfect union has to do with secession. Also the CoA could only be replace with a unaniamous vote of the states, it was replace when nine state ratified it, does this not make the Constitution an  illegal document? As you state if it is not in a contract it is not binding on the parties, so since it is not stated in the Constitution a state can not leave the Union it has every right to do leave.

 I never stated one state could disolve the Union only leave it. One state can not disolve the Union, because the other remain to make the Union minus the one that left.

As to the AFB you are talking about today which has no bearing on 1860. The federal govt. now I think lease land from the states to form military bases in most instances, this was not the case in 1860. This is why I stated you need to think in the what was the climate and laws of the time period, not as if it were happening today.

As to NYC you misunderstand my statements. NYC was chartered by the state of NY the land belongs to the state not the city therefore the city can not take the land from the state.

To disolve the U.S. it would take the Constitutional amendment process to do it. This is still not the same as a state leaving the U.S., which would leave the U.S. intact.

Why must I show where it says in the Constitution a state can leave, but no one must show me where it says a state can not leave?

Here is a link that might help: http://www.lewrockwell.com/ostrowski/ostrowski31.html

Thanks

Shadowrebel

Last edited on Wed Apr 26th, 2006 12:31 am by Shadowrebel



 Current time is 11:40 pmPage:    1  2  Next Page Last Page  
Top




UltraBB 1.17 Copyright © 2007-2008 Data 1 Systems
Page processed in 0.3057 seconds (8% database + 92% PHP). 26 queries executed.