View single post by David White
 Posted: Wed Apr 26th, 2006 08:15 pm
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David White

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

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I think we will start to repeat ourselves from here on out but let me address a few of your points and summarize my position:


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?


Not always, examples are joining the military and getting married.


On what legal grounds regarding the Constitution would the southern states file a court case?


Even the Southern loving Chief Justice of the Supreme Court Roger Taney said in a habeas corpus case in 1858, “No power is more clearly conferred by the Constitution and laws of the United States than the power of this court to decide, ultimately and finally, all cases arising under such Constitution and laws."  He was referring to his oath to uphold the Constitution.  I propose a Supreme Court ruling would have been the only “legal” way to settle the secession question via a 10th amendment challenge by the seceding states asking the courts to clarify the founding fathers’ original intent.  As to the Federal government filing a case, the Buchanan administration decided to leave it for the next administration.  The Lincoln administration did not have time to do so as the South committed an act of war while they sought a negotiated resolution of the crisis, thus making a legal resolution moot at that point.  Regardless, a “legal” resolution was preposterous as the South no longer recognized the courts and would not have shown up to defend a case against them.


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.


You didn’t read far enough, keep going to Article XIII:


“Article XIII: Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.”


As to your contention that SC owned Ft. Sumter, I’ll submit this interesting article to refute that and the ownership of all other Federal property in the South at the time of hostilities:  In addition, the “island” the fort sits on was not an island until the Federal Government built it so to claim it belonged to SC when the Federal Government created it is preposterous.


I do find writings from the founding fathers in the Federalist Papers and elsewhere about the intent of the 10th Amendment.  In summary they state that the 10th Amendment is a source of the constitutional policy that Congress may not exercise power in a fashion that impairs states’ integrity or their ability to function effectively in the federal system. Thus, federal laws and regulations which treat the states in a manner inconsistent with this policy are subject to challenge, not because they violate any specific constitutional provision or transgress the explicit boundaries of any definite grant of authority, but because they ignore the guarantees of the 10th  Amendment and impinge upon the structural "assumptions" and "tacit postulates" of the Constitution as a whole. i.e. the application of the 10th Amendment in 1861 comes in from a challenge from the states to Lincoln’s declaration in his first inaugural that he had determined secession was not legal.  At that point the states had to submit the issue  to  the people or the courts.  Unfortunately they resorted to an attack and I’ve already discussed the impracticability of such an approach anyway.


As to my questions about dissolution of the Union it was merely to point out that this issue is not addressed  by the Constitution either and any attempt by the Federal government to do so could also be challenged in the courts under a violation of the 10th Amendment.  The founding Fathers did not contemplate radios and nuclear power either, so are the FCC and NRC unconstitutional because of the 10th Amendment?  Not unless a state challenged them under the 10th Amendment and won.  They might be unconstitutional, but without a challenge they will exist and be legal entities of the Federal government.  The purpose of the 10th Amendment was to control the Federal government and not confer carte blanche power to them.  It does not conversely provide carte blanche power to the states for any matters not addressed by the Constitution.  It is merely a challenge mechanism.


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.


I don’t think the process is any different today as it was when the country was founded, see the above article about ownership of Ft. Sumter.


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?


I never asked that because I know it doesn’t exist.  I asked where any of the Founding Fathers in their correspondence or the Federalist Papers discussed secession as a legal process.  I have never seen such a discussion and the  examples you do cite go to my point that the only practical way to settle the question is through the extralegal force of arms.  


In summary:


I cannot show you that there is nothing that explicitly precludes secession just as you cannot show me anything that explicitly allows secession.  An event of such importance to all the states would never, IMO, be left up to the discretion of one state as it potentially impacted all of them tremendously.  Think about Louisiana leaving and the impact the closing of the Mississippi would have on the economic interests of the entire Mississippi River valley.  That would impact states significantly, even as far away as your home state that uses the Ohio River for commerce.  As the Constitution is silent on the issue, one must look to the intent of the Founding Fathers.  On the matter of a legal secession process the writings  of the Founding Fathers are silent.  It is, IMO, because they did not even conceive of that possibility for a “perfect Union” as described in the preamble of the Constitution. You may denigrate the preamble as having no weight but it is like the purpose statement of all that follows it.  Even Taney, a chief justice I assume you would respect, in his opinion for the Dred Scott case said that every word of the Constitution must be carefully read as he believed the founding fathers chose their words carefully.  As you point out, some of the founding fathers and other political leaders talk about secession in terms of an extralegal rebellion or uprising of the people, not as a legal remedy through the political or judicial system.  Since the title of this thread asks was secession legal, my conclusion based on that rationale, it was/is not.

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