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 Posted: Wed Apr 26th, 2006 07:15 pm
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David White
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ShadowRebel:

 

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.”

 

http://www.yale.edu/lawweb/avalon/artconf.htm

 

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: http://www.civilwarhome.com/sumterownership.htm.  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.



 Posted: Wed Apr 26th, 2006 11:33 pm
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Shadowrebel
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David,

Thank you for your reply. Your examples of the military and getting married are not exactly correct. You join the military knowing you have a certain committment of time once that time is up you may leave. When you get married you may leave the marriage when you wish and have it legally dissolved. Neither is a forever committment.

Since there is no mention of secession in the Constitution there is nothing for the courts to rule on. Again if it is not specified in the Constitution it is a states right. Is it not? My use of AoC II was to show that the states retained any rights not granted to the U.S., Article XIII does not restrict secession.

Ownership of Fort Sumter has been debate, without resolution, for a long time and is probable not ever going to be settled.

You can read "intent" into anything. The intent of the Founding Fathers is not relevent as you can not determine what it was, so you can only use what they wrote. You cite the Federalist Papers, if you read the Anti-Federalist Papers you get an entirely different view: http://www.wepin.com/articles/afp/index.htm 

The Federalist Papers were written to get acceptance of the Constitution and I would not think the Founding Fathers would say anything in regard to secession since they were not even sure that they would survive their revolution.

Lincolns' determination that secession was not legal is his opinion which he was intitled to.

Until someone can show me where it states in the Constitution, the Law of the Land, it is was expressly forbidden to secede from the Union I will standby my contention that if it is not a power granted to the Federal govt. it remains a states right.

Since the Founding Fathers(Thomas Jefferson) stated that one of the reasons for bearing arms was to defend against the tyranny of ones' government the South only did as the Founding Fathers state they had a right to do.

Regards

Shadowrebel



 Posted: Thu Apr 27th, 2006 12:23 am
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javal1
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Interesting back and forth, but ShadowRebel please explain why you say Article Xlll doesn't prohibit secession:

“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



 Posted: Thu Apr 27th, 2006 01:29 am
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Shadowrebel
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Javal,

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.


Javal you forgot to bold the important part of Article XIII, And the Articles of this Confederation shall be inviolably observed by every State. The key part of your question is the Articles shall be inviolably observed.

Since there is no article in the AoC that stops the states from leaving the Union this article does not prevent them from leaving. Secession does not alter the perpetual Union nor does it alter any of the articles. You may have a perpetual Union with any number of states. Does a perpetual Union preclude adding more states? Meaning of perpetual: http://www.realdictionary.com/p/dir/perpetual.asp

1) s :occurring so frequently as to seem ceaseless or uninterrupted  2) s :uninterrupted in time and indefinitely long continuing  3) s :continuing forever or indefinitely

I believe that states leaving the Union would not alter the meaning of perpetual. The only way the perpetual Union would cease is by a Constitutional Amendment to form a new government.

 The only way the AoC could be replace was by unanimous consent of the states. Since only nine states approved the Constitution when it was approved does this not make the Constitution an act of secession? If you think the Constitution was the law of the land in 1860 that makes the AoC a moot point in the arguement of secession.

One final point: Can you violate a law that does not exsist?

Thank you for your reply. I hope I have answered you question.

Shadowrebel

 

 

Last edited on Thu Apr 27th, 2006 01:52 am by Shadowrebel



 Posted: Thu Apr 27th, 2006 02:10 am
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Shadowrebel
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David,

Some quotes from Thomas Jefferson: Jefferson, who called Virginia his “country,” planted the seeds of the secession doctrine when he wrote his Kentucky Resolution of 1798, in protest to the Alien and Sedition laws:

The several states composing the United States of America are not united on the principle of unlimited submission to their general government; but that, by compact, under the style and title of the Constitution of the United States, and of certain amendments thereto, they constituted a general government for general purposes, delegated to that government certain powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void and of no effect.1212Quoted in Hannis Taylor, The Origin and Growth of the American Constitution (Boston: Houghton Mifflin, 1911), p. 306.


[Jefferson] forthrightly held that where the national government exercised powers not specifically delegated to it, each state “has an equal right to judge . . . the mode and measure of redress.” . . . He was, he assured Madison, “confident in the good sense of the American people,” but if they did not rally round “the true principles of our federal compact,” he was “determined . . . to sever ourselves from the union we so much value rather than give up the rights of self-government . . . in which alone we see liberty, safety and happiness.”14 14Willard Sterne Randall, Thomas Jefferson: A Life (New York: Henry Holt, 1993), pp. 534–36.


Seem like Mr. Jefferson felt you could leave the Union.


Regards


Shadowrebel



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 Posted: Thu Apr 27th, 2006 07:12 pm
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Shadowrebel
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Indy,

For something to be illegal does not a law have to be broken? Since the Constitution does not forbid secession what law did the Southern States violate when it seceded? To agure that nothing in the Constitution allows secession would be pointless since you do not need a law to allow something.

Why would South Carolina apply to the Federal government over something that was a States Right? Secession is a states right to make a law regarding since it was not a right given to the Federal government. The Federal govt.can only rule on what is in the Constitution they were given right to.

How would South Carolina "apply for secession"?

Regards

Shadowrebel



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 Posted: Fri Apr 28th, 2006 12:41 am
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Shadowrebel
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Indy,

This thread is about is secession legal. Since there was no law violated it was certainly legal to secede. If something is not illegal it must be legal they are the only two choices when it comes to the law.

As to perpetuity inherently: How does the Southern State leaving the Union effect perpetualiy?  Meaning of perpetual: http://www.realdictionary.com/p/dir/perpetual.asp

1) s :occurring so frequently as to seem ceaseless or uninterrupted  2) s :uninterrupted in time and indefinitely long continuing  3) s :continuing forever or indefinitely


The Union did continue uninterrupted in time. There was still a Union after secession.

Are you refering to the same Thomas Jefferson who wrote the Declaration of Indepenance and stated that  "One of the reasons for bearing arms was to defend against the tyranny of ones' government". Of course he would not feel that a article about secession was needed in the Constitution, all you need to do is look at what he wrote to find how he felt about changing your government. Look at the actions of the Founding Fathers who tried to change the government by negotiations finally turned to revolution to reach their goals. How anyone can state the Founding Fathers would not be in favor of secession after what they did is beyond me. It is not a logical arguement. Not only did they want secession they went to war over it. Did not Massachusetts for over decade feel it had a right to secede?

My using the 10th amendment is only to show that any powers not delegated to the Federal govt. is reserved to the States. Am I right?

Since you can not tell me how South Carolina was to apply for secession I assume you know it was not possible. The reason being secession is not in the Constitution therefore not a subject any rulings from the Federal government. They gave their reasons for leaving then voted to leave.

The Union were formed by the Articles of Confederation that was later replaced (illegally) by the Constitution, which does not change how the Union was formed: Article III. The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.

Is not a firm league of friendship a mere loose collection of states?

You keep bringing up the 10th amendment (not this post) as the "right" to secede. Was the 10th Amendment even mentioned in any Declarations of Secession? If not, that theory holds no water.

From the Declaration of Secession of South Carolina, the first state to secede:

By this Constitution, certain duties were imposed upon the several States, and the exercise of certain of their powers was restrained, which necessarily implied their continued existence as sovereign States. But to remove all doubt, an amendment was added, which declared that 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. On the 23d May , 1788, South Carolina, by a Convention of her People, passed an Ordinance assenting to this Constitution, and afterwards altered her own Constitution, to conform herself to the obligations she had undertaken. Here is your reference to the 10th amendment.

Again if is not illegal it must be legal. Until someone shows me exactly what law was broken the Southern secession must be deemed legal. Since legal can only be applied to rules and laws.

Thank you for your comments.

Regards

John


 

Last edited on Fri Apr 28th, 2006 08:32 pm by Shadowrebel



 Posted: Fri May 23rd, 2014 01:38 pm
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borderuffian
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An old thread but worthy of further discussion...

When the states ratified the Constitution several of them placed reservations within those documents about re-assuming the powers delegated to the US government.
The US government accepted those ratifications and in doing so gave color to the legality of secession...separation/independence - whatever you wish to call it.

Last edited on Fri May 23rd, 2014 01:38 pm by borderuffian



 Posted: Fri May 23rd, 2014 02:23 pm
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Texas Defender
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borderuffian-

   You must have set some kind of record by reviving a thread that has been dormant for over eight years, but after over 150 years, the question is still debated.

   A question that I like to ask is: "Would the Constitution ever have been ratified if it had contained a clause that said: "The Federal Government is given the authority to prevent any state or states from ever leaving the union that they have created?""

   I think that it would not have been.



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