View single post by Shadowrebel
 Posted: Fri Apr 21st, 2006 01:00 am
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Shadowrebel
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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First, the Articles of Confederation had been superceded by the Constitution.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

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