With the 150th anniversary of the Civil War, I was asked in this cover story for the Civil War Magazine to explore the rivaling constitutional claims that were made at the start of that bloody conflict. As a military history buff, I have occasionally written for these history magazines but I found this assignment particularly intriguing.
Over the centuries, various excuses have been employed for starting wars. Wars have been fought over land or honor. Wars have been fought over soccer (in the case of the conflict between Honduras and El Salvador in 1969) or even the shooting of a pig (in the case of the fighting between the United States and Britain in the San Juan Islands in 1859).
But the Civil War was largely fought over equally compelling interpretations of the U.S. Constitution. Which side was the Constitution on? That’s difficult to say.
The interpretative debate—and ultimately the war—turned on the intent of the framers of the Constitution and the meaning of a single word: sovereignty—which does not actually appear anywhere in the text of the Constitution.
Southern leaders like John C. Calhoun and Jefferson Davis argued that the Constitution was essentially a contract between sovereign states—with the contracting parties retaining the inherent authority to withdraw from the agreement. Northern leaders like Abraham Lincoln insisted the Constitution was neither a contract nor an agreement between sovereign states. It was an agreement with the people, and once a state enters the Union, it cannot leave the Union.
It is a touchstone of American constitutional law that this is a nation based on federalism—the union of states, which retain all rights not expressly given to the federal government. After the Declaration of Independence, when most people still identified themselves not as Americans but as Virginians, New Yorkers or Rhode Islanders, this union of “Free and Independent States” was defined as a “confederation.” Some framers of the Constitution, like Maryland’s Luther Martin, argued the new states were “separate sovereignties.” Others, like Pennsylvania’s James Wilson, took the opposite view that the states “were independent, not Individually but Unitedly.”
Supporting the individual sovereignty claims is the fierce independence that was asserted by states under the Articles of Confederation and Perpetual Union, which actually established the name “The United States of America.” The charter, however, was careful to maintain the inherent sovereignty of its composite state elements, mandating that “each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated.” It affirmed the sovereignty of the respective states by declaring, “The said states hereby severally enter into a firm league of friendship with each other for their common defence [sic].” There would seem little question that the states agreed to the Confederation on the express recognition of their sovereignty and relative independence. Supporting the later view of Lincoln, the perpetuality of the Union was referenced during the Confederation period. For example, the Northwest Ordinance of 1787 stated that “the said territory, and the States which may be formed therein, shall forever remain a part of this confederacy of the United States of America.”
The Confederation produced endless conflicts as various states issued their own money, resisted national obligations and favored their own citizens in disputes. James Madison criticized the Articles of Confederation as reinforcing the view of the Union as “a league of sovereign powers, not as a political Constitution by virtue of which they are become one sovereign power.” Madison warned that such a view could lead to the “dissolving of the United States altogether.” If the matter had ended there with the Articles of Confederation, Lincoln would have had a much weaker case for the court of law in taking up arms to preserve the Union. His legal case was saved by an 18th-century bait-and-switch.
A convention was called in 1787 to amend the Articles of Confederation, but several delegates eventually concluded that a new political structure—a federation—was needed. As they debated what would become the Constitution, the status of the states was a primary concern. George Washington, who presided over the convention, noted, “It is obviously impracticable in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all.” Of course, Washington was more concerned with a working federal government—and national army—than resolving the question of a state’s inherent right to withdraw from such a union. The new government forged in Philadelphia would have clear lines of authority for the federal system. The premise of the Constitution, however, was that states would still hold all rights not expressly given to the federal government.
The final version of the Constitution never actually refers to the states as “sovereign,” which for many at the time was the ultimate legal game-changer. In the U.S. Supreme Court’s landmark 1819 decision in McCulloch v. Maryland, Chief Justice John Marshall espoused the view later embraced by Lincoln: “The government of the Union…is emphatically and truly, a government of the people.” Those with differing views resolved to leave the matter unresolved—and thereby planted the seed that would grow into a full civil war. But did Lincoln win by force of arms or force of argument?
On January 21, 1861, Jefferson Davis of Mississippi went to the well of the U.S. Senate one last time to announce that he had “satisfactory evidence that the State of Mississippi, by a solemn ordinance of her people in convention assembled, has declared her separation from the United States.” Before resigning his Senate seat, Davis laid out the basis for Mississippi’s legal claim, coming down squarely on the fact that in the Declaration of Independence “the communities were declaring their independence”—not “the people.” He added, “I have for many years advocated, as an essential attribute of state sovereignty, the right of a state to secede from the Union.”
Davis’ position reaffirmed that of John C. Calhoun, the powerful South Carolina senator who had long viewed the states as independent sovereign entities. In an 1833 speech upholding the right of his home state to nullify federal tariffs it believed were unfair, Calhoun insisted, “I go on the ground that [the] constitution was made by the States; that it is a federal union of the States, in which the several States still retain their sovereignty.” Calhoun allowed that a state could be barred from secession by a vote of two-thirds of the states under Article V, which lays out the procedure for amending the Constitution.
Lincoln’s inauguration on March 4, 1861, was one of the least auspicious beginnings for any president in history. His election was used as a rallying cry for secession, and he became the head of a country that was falling apart even as he raised his hand to take the oath of office. His first inaugural address left no doubt about his legal position: “No State, upon its own mere motion, can lawfully get out of the Union, that resolves and ordinances to that effect are legally void, and that acts of violence, within any State or States, against the authority of the United States, are insurrectionary or revolutionary, according to circumstances.”
While Lincoln expressly called for a peaceful resolution, this was the final straw for many in the South who saw the speech as a veiled threat. Clearly when Lincoln took the oath to “preserve, protect, and defend” the Constitution, he considered himself bound to preserve the Union as the physical creation of the Declaration of Independence and a central subject of the Constitution. This was made plain in his next major legal argument—an address where Lincoln rejected the notion of sovereignty for states as an “ingenious sophism” that would lead “to the complete destruction of the Union.” In a Fourth of July message to a special session of Congress in 1861, Lincoln declared, “Our States have neither more, nor less power, than that reserved to them, in the Union, by the Constitution—no one of them ever having been a State out of the Union. The original ones passed into the Union even before they cast off their British colonial dependence; and the new ones each came into the Union directly from a condition of dependence, excepting Texas. And even Texas, in its temporary independence, was never designated a State.”
It is a brilliant framing of the issue, which Lincoln proceeds to characterize as nothing less than an attack on the very notion of democracy:
Our popular government has often been called an experiment. Two points in it, our people have already settled—the successful establishing, and the successful administering of it. One still remains—its successful maintenance against a formidable [internal] attempt to overthrow it. It is now for them to demonstrate to the world, that those who can fairly carry an election, can also suppress a rebellion—that ballots are the rightful, and peaceful, successors of bullets; and that when ballots have fairly, and constitutionally, decided, there can be no successful appeal, back to bullets; that there can be no successful appeal, except to ballots themselves, at succeeding elections. Such will be a great lesson of peace; teaching men that what they cannot take by an election, neither can they take it by a war—teaching all, the folly of being the beginners of a war.
Lincoln implicitly rejected the view of his predecessor, James Buchanan. Buchanan agreed that secession was not allowed under the Constitution, but he also believed the national government could not use force to keep a state in the Union. Notably, however, it was Buchanan who sent troops to protect Fort Sumter six days after South Carolina seceded. The subsequent seizure of Fort Sumter by rebels would push Lincoln on April 14, 1861, to call for 75,000 volunteers to restore the Southern states to the Union—a decisive move to war.
Lincoln showed his gift as a litigator in the July 4th address, though it should be noted that his scruples did not stop him from clearly violating the Constitution when he suspended habeas corpus in 1861 and 1862. His argument also rejects the suggestion of people like Calhoun that, if states can change the Constitution under Article V by democratic vote, they can agree to a state leaving the Union. Lincoln’s view is absolute and treats secession as nothing more than rebellion. Ironically, as Lincoln himself acknowledged, that places the states in the same position as the Constitution’s framers (and presumably himself as King George).
But he did note one telling difference: “Our adversaries have adopted some Declarations of Independence; in which, unlike the good old one, penned by Jefferson, they omit the words ‘all men are created equal.'”
Lincoln’s argument was more convincing, but only up to a point. The South did in fact secede because it was unwilling to accept decisions by a majority in Congress. Moreover, the critical passage of the Constitution may be more important than the status of the states when independence was declared. Davis and Calhoun’s argument was more compelling under the Articles of Confederation, where there was no express waiver of withdrawal. The reference to the “perpetuity” of the Union in the Articles and such documents as the Northwest Ordinance does not necessarily mean each state is bound in perpetuity, but that the nation itself is so created.
After the Constitution was ratified, a new government was formed by the consent of the states that clearly established a single national government. While, as Lincoln noted, the states possessed powers not expressly given to the federal government, the federal government had sole power over the defense of its territory and maintenance of the Union. Citizens under the Constitution were guaranteed free travel and interstate commerce. Therefore it is in conflict to suggest that citizens could find themselves separated from the country as a whole by a seceding state.
Moreover, while neither the Declaration of Independence nor the Constitution says states can not secede, they also do not guarantee states such a right nor refer to the states as sovereign entities. While Calhoun’s argument that Article V allows for changing the Constitution is attractive on some levels, Article V is designed to amend the Constitution, not the Union. A clearly better argument could be made for a duly enacted amendment to the Constitution that would allow secession. In such a case, Lincoln would clearly have been warring against the democratic process he claimed to defend.
Neither side, in my view, had an overwhelming argument. Lincoln’s position was the one most likely to be upheld by an objective court of law. Faced with ambiguous founding and constitutional documents, the spirit of the language clearly supported the view that the original states formed a union and did not retain the sovereign authority to secede from that union.
Of course, a rebellion is ultimately a contest of arms rather than arguments, and to the victor goes the argument. This legal dispute would be resolved not by lawyers but by more practical men such as William Tecumseh Sherman and Thomas “Stonewall” Jackson.
Ultimately, the War Between the States resolved the Constitution’s meaning for any states that entered the Union after 1865, with no delusions about the contractual understanding of the parties. Thus, 15 states from Alaska to Colorado to Washington entered in the full understanding that this was the view of the Union. Moreover, the enactment of the 14th Amendment strengthened the view that the Constitution is a compact between “the people” and the federal government. The amendment affirms the power of the states to make their own laws, but those laws cannot “abridge the privileges or immunities of citizens of the United States.”
There remains a separate guarantee that runs from the federal government directly to each American citizen. Indeed, it was after the Civil War that the notion of being “American” became widely accepted. People now identified themselves as Americans and Virginians. While the South had a plausible legal claim in the 19th century, there is no plausible argument in the 21st century. That argument was answered by Lincoln on July 4, 1861, and more decisively at Appomattox Court House on April 9, 1865.
Jonathan Turley is one of the nation’s leading constitutional scholars and legal commentators. He teaches at George Washington University.
Article originally published in the November 2010 issue of America’s Civil War.
This posting by Miller is too long for a single response. It rehearses 150 years of Lost Cause and Neo-Confederate cant about the secession issue and the White case. The rebel states never left the Union. Their stars stayed on the flag.
I will respond that Miller’s statement that ruling of the case was “dicta.”
That statement is legally wrong.
Dicta refers to opinion voiced by a judge that has only incidental bearing on the case in question and is therefore not binding.
The ruling on secession was essential to the very jurisdiction of the Court in White.
According to the Court, it was an “original suit in this court, in which the State of Texas, claiming certain bonds of the United States as her property, asks an injunction to restrain the defendants from receiving payment from the National government, and to compel the surrender of the bonds to the State.”
The Court stated that it “presents a question of jurisdiction. It is not to be questioned that this court has original jurisdiction of suits by States against citizens of other States, or that the States entitled to invoke this jurisdiction must be States of the Union. But it is equally clear that no such jurisdiction has been conferred upon this court of suits by any other political communities than such States.
“If, therefore, it is true that the State of Texas was not, at he time of filing this bill, or is not now, one of the United States, we have no jurisdiction of this suit, and it is our duty to dismiss it.”
So the Court had to resolve the question of secession in order to rule on the case. If the secession had been lawful, then Texas would not have been a State, and the Court would have been bereft of jurisdiction.
After an extensive review of the facts and law, the Court concluded held that “Texas continued to be a State, and a State of the Union, notwithstanding the transactions to which we have referred.”
The Court went on to rule that “On the whole case, therefore, our conclusion is that the State of Texas is entitled to the relief sought by her bill, and a decree must be made accordingly.”
So the ruling on secession was not dicta, but holding, since it was necessary for the decision of the case.
@Vince Treacy
I know it’s late in the discussion, and I have been attending to other business, but there is one statement that should not be allowed to stand without correction: Texas v. White. It has been said here that, “The Supreme Court settled the question in Texas v. White”
This is simply not at all true!Here’s why:
As far as the merits of Texas v. White are concerned, the most serious flaw in bestowing any credibility on this decision was that this case was not about secession; it was about the ownership and sale of bonds as well as jurisdiction. The parties to this case did not argue or cite evidence claiming the States had, or did not have, a right to secede; they focused their arguments on the legality of the bond sale, and their arguments on jurisdiction dealt with the status of Texas as a State under military rule—not if Texas had the constitutional right to secede.
The Chief Justice made his comments on secession when he wrote the majority opinion, and his comments were not based on arguments made by the parties to the case. Furthermore, the Chief Justice’s comments were what is know as “dicta.”
It is therefore unreasonable to claim this issue was “settled” when the arguments presented by the parties to the case did not address the right of States to secede. Without the opportunity for argument, debate, and rebuttal on the issue, it cannot be said that this issue was “settled” when a very partisan Chief Justice took the occasion to insert his opinion on a question that was not argued before the Court.
Fact is, there has never been a court case where arguments were made on the right of States to withdraw from the Union. Without the opportunity for both sides to present their arguments on the issue, just dicta alone from the Chief Justice does not establish a precedent setting opinion of the Court. This fact alone should put an end to the use of Texas v. White to refute the right of States to withdraw from the Union, but even so, there are other problems with Texas v. White that need to be exposed.
There was also a serious conflict of interest and lack of impartiality by the Chief justice in his writing of the majority opinion. There were five Lincoln appointees sitting on the bench when Chief Justice Chase offered his opinion on secession, but the Chief justice was the only Justice intimately entwined with the Lincoln administration and its policies regarding secession. He certainly should have recused himself if he was going to opine from the Bench on Lincoln’s view of secession.
It is interesting that in Justice Chase’s opinion, he again used the term “the seceded states” as he did in his advice to Lincoln on Fort Sumter. Not to make too much of this phrase, but Lincoln seemed to take great care not to use the “seceded states” phrase, for in doing so it could be taken as an admission that the States had indeed seceded. Further evidence that Chase believed secession had occurred can also be found in his opinion on this case when he wrote, “The relations of Texas to the Union were broken up, and new relations to a new government were established for them.” Here again, he seemed to be saying that Texas had indeed “broken up” its relations with the Union and joined another government—in other words, they had seceded.
Despite Chief Justice Chase’s clear bias regarding the issue of secession, there were also problems with the underlying facts of his ruling. Not surprisingly, for someone intimately involved with Lincoln’s administration, his opinion parroted one of Lincoln’s arguments—the thoroughly debunked theory of, “a more perfect and perpetual Union.”
Chase claimed, “The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States.” However, he failed to mention or explain the secession of nine of these original States from their first union (the Articles of Confederation); the only union the States ever proclaimed to be perpetual. There can be no doubt that our first Union under the Articles of Confederation, although claiming to be perpetual, or our current Union under the Constitution, without any such claim of being perpetual, were neither perpetual nor indissoluble.
It was also odd that for someone as well versed in the law as was the Chief Justice, to use a phrase found in the preamble of our Constitution, “a more perfect union,” upon which he based his claim of a perpetual union. Odd because preambles and headings are rarely used to form legal opinions.
This ruling also claimed the, “Authority to suppress rebellion is found in the power to suppress insurrection and carry on war, and authority to provide for the restoration of State governments, under the Constitution, when subverted and overthrown, is derived from the obligation of the United States to guarantee to every State in the Union a republican form of government.” But Chase’s opinion conveniently leaves out the constitutional requirement for the “Application of the Legislature” in the suppression of domestic violence, the constitutional protection against invasion, and the fact that the seceded States had a “republican form of government” under their newly constituted government.
Another canard promoted in the Court’s opinion claims, “War having become necessary to complete the purposed destruction by the South of the Federal government, Texas joined the other Southern States, and made war upon the United States…” This is pure nonsense since even those deniers of the right of secession understand that the South was not attempting to wage war against the United States—they simply wanted to be left alone.
Finally, the United States Supreme Court, as an impartial arbiter on disputes involving the interpretation of the Constitution, has lost all credibility. Who can deny that politics plays the most prominent of roles in the nomination of Supreme Court Justices as well as their confirmation. Republicans and Democrats both work to insure that new Justices look favorably on their issues when they are seated on the Court. If one needs any evidence of the extreme political nature of the Supreme Court today, all they need do is look at the number of 5-4 decisions on issues of import—with the same Justices split ideological between liberal and conservative views.
The opinions rendered in this case had many flaws when it came to deciding the constitutionality of secession, and any one of the more serious problems found in the majority’s opinion should be enough to remove the cloak of respectability from this dubious opinion. While there was no hard evidence of such, some believe this case was manufactured for the sole purpose of legitimizing the Civil War. But, speculation aside, it does appear that so soon after the Civil War there was desperation by those involved in the horrific and unconstitutional actions of the Lincoln administration, including Chief Justice Chase, to look for any opportunity that might justify their misdeeds. Texas v. White offered that opportunity, regardless of the convoluted and flawed opinion of the Court’s majority.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
— United States Declaration of Independence
“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. Nor is this right confined to cases in which the whole people of an existing government may choose to exercise it. Any portion of such people that can may revolutionize and make their own of so much of the territory as they inhabit.”
— Abraham Lincoln, January 12, 1848 in the US House of Representatives
Bob,Esq.
Never hurts to clarify or to ask for clarification.
Blouise,
My apologies; I thought I needed to clarify.
Eventually they will gain the confidence to post for themselves.
Bob … Bob … no criticism intended … simply attempting to get the kids to pay attention … their emails were going off topic.
I want them to pay attention to your argument!
“It takes some nerve to start tossing around terms like treason and tyranny while talking about an academic, moot, point of law, while ignoring the actual bloody history.”
Is that what I was doing Blouise? Or does a comment like that completely ignore the argument I made?
Finally, per the distinction between his-story based argumentation and argumentation based on a priori principles…
“Everyone must admit that if a law is to be morally valid as a ground of obligation, then it must carry with it absolute necessity. [One] must concede that the ground of obligation here must therefore be sought not in the nature of man, nor in the circumstances of the world in which man is placed, but must be sought a priori solely in the concepts of pure reason; he must grant that every other precept which is founded on principles of mere experience-even a precept that may in certain respects be universal-in so far as it rests in the least on empirical grounds-perhaps only in its motive–can indeed be called a practical rule, but never a moral law.” — Immanuel Kant
“Accordingly, it would be greatly appreciated if kept your historically based dismissive sophistry to yourself.”(Bob,Esq.)
I have failed to grasp any deception or attempts to mislead … go back and check the argument, grandkids, and then email me if you find examples of “historically based dismissive sophistry”.(Bob/Vince exchange)
Vince,
Do try not to get hysterical.
Seeing you haven’t been paying attention, my arguments are not based in history or the Civil War. My arguments are based on the a priori principles we’ve been left to work with.
“Treason to the constitution” is Marshall’s phraseology for describing lack of fealty to the constitution.
Violating the separation of powers doctrine necessitates a lack of fealty to the constitution. It is also defined as tyranny since the separation of powers …”prevents the exercise of autocratic power, is a matter of fundamental necessity, and is essential to the maintenance of a republican form of government. In short, this division of power provision serves to create a governmental structure “resistant to the forces of tyranny.”
Accordingly, it would be greatly appreciated if kept your historically based dismissive sophistry to yourself.
Sorry Vince, but
Texas v. White is completely inapplicable per my argument.
My argument centers around tyranny; i.e. the victim of tyranny is categorically excused from remaining subordinate to said tyrant. (See Declaration of Covenants and Restrictions against Tyranny dated July 4, 1776)
Texas, in Texas v. White, was in fact the admitted tyrant in the equation; not the Federal Government.
to wit:
“[Texas] was received as a commonwealth holding, maintaining and protecting the institution known as negro slavery– the servitude of the African to the white race within her limits— a relation that had existed from the first settlement of her wilderness by the white race, and which her people intended should exist in all future time.”
http://avalon.law.yale.edu/19th_century/csa_texsec.asp
“AS usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to.”
“Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself.”
N.B. The exercise of power over an individual’s property in his own person is an act of tyranny PER SE. In other words, slavery is tyranny per se.
Accordingly, since Texas joined the union under the Equal Footing Doctrine — making Texas a party to the Declaration of Covenants and Restrictions Against Tyranny dated July 4, 1776 — the Fed had every right to kick the ass of every Confederate Texan that deluded themselves into believing they had a right to secede so as to perpetuate tyranny as described above.
Thus Texas v. White, and you, have completely failed to address my argument.
QED
Treason, Bob?
The Constitution defines “actual” treason.
It consists only of levying war against the United States.
There must be the testimony of two witnesses to the same act.
Well, the rebels waged war against the U.S. There were at least two witnesses.
So there was your treason.
And tyranny?
Hey, please recall that the rebels enslaved, repeat, enslaved, four million human beings.
It takes some nerve to start tossing around terms like treason and tyranny while talking about an academic, moot, point of law, while ignoring the actual bloody history.
Sorry, Bob, Esq., but, as a lawyer, given a choice between controlling Supreme Court precedent and you personal legal opinion, unsupported by any cases, I have to choose the Court.
Texas v. White, 74 U. S. 700, 726-28 (1868)
QUOTE When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.
Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation.
Our conclusion therefore is that Texas continued to be a State, and a State of the Union, notwithstanding the transactions to which we have referred. And this conclusion, in our judgment, is not in conflict with any act or declaration of any department of the National government, but entirely in accordance with the whole series of such acts and declarations since the first outbreak of the rebellion.
UNQUOTE
http://supreme.justia.com/us/74/700/case.html
This is the second time I have posted this link.
So. The Court ruled that “…the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null.”
That is clear. Until the secessionist get an amendment passed, or pack the Court so as to reverse Texas v. White, that is the law.
These arguments for secession are historical curiosities.
Look, everyone, a poster on another thread once said that a woman could not be elected President because the Constitution uses the pronoun “he.” In 2010, the secession-by-simple-withdrawal has about as much heft.
So some folk do not agree with Texas v. White. So what? Some folk still think Plessy v. Ferguson is the correct interpretation of the 14th Amendment. It does not matter. The Court has spoken.
On the historical background, I agree with Tom that the unionist position, as eloquently expressed by Lincoln and others, was persuasive. The states never had any independent existence outside the United States. The Union was perpetual, not dissoluble at will.
The arguments of the secessionist in 1861 were especially specious, since they were just a smoke screen for their ambitions to preserve slavery and to expand it and spread it to the territories.
Mespo: “If you want to advocate secession, please just come out and do so, but understand the consequences that both history and law hold for the proponents of actual treason.”
Paraphrasing Marshall:
“[The Federal Government has] no more right to decline the exercise of [power] which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution. …All [it] can do is to exercise [its] best judgment, and conscientiously perform [its Article VI Duty].” ( Cohens v. Virginia, 6 Wheat, 264 )
Because….
“AS usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to.”
“There are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity; among which are the enjoyment of life and liberty; with the means of acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.“ Virginia Ratifying Convention, Proposed Amendments to the Constitution, 27 June 1788
“The attribution of supremacy to the Constitution on the ground solely of its rootage in popular will represents a comparatively late outgrowth of American Constitutional theory. Earlier the supremacy accorded to the constitutions was ascribed less to their putative source than to their supposed content, to their embodiment of essential and unchanging justice.” (Corwin,
The Higher Law, Background of American Constitutional Law, 1928, 42 Harv. L. Rev. 1439, 152
“WE the Delegates of the People of the State of New York, duly elected and Met in Convention, having maturely considered the Constitution for the United States of America, agreed to on the seventeenth day of September, in the year One thousand Seven hundred and Eighty seven, by the Convention then assembled at Philadelphia in the Common-wealth of Pennsylvania (a Copy whereof precedes these presents) and having also seriously and deliberately considered the present situation of the United States, Do declare and make known.
That all Power is originally vested in and consequently derived from the People, and that Government is instituted by them for their common Interest Protection and Security.
That the enjoyment of Life, Liberty and the pursuit of Happiness are essential rights which every Government ought to respect and preserve.
That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution.”
http://avalon.law.yale.edu/18th_century/ratny.asp
In trying to figure out what the founders had in mind when the Constitution was written and enacted, it seems important to me that the Constitution appears to be essentially a rejection of aspects of the Articles of Confederation.
Given that the Articles explicitly included the “sovereignty” of the States, and the Constitution omits it, isn’t it clear that a choice was made to, for the most part, eliminate the idea that the States were fundamentally “sovereign”?
It also seems telling that Prof. Turley could reference several examples of written, legally enacted documents that side with the idea that States can not secede without a Constitutional amendment, but the “evidence” for the “state sovereignty” argument primarily consists of southerners saying “cuz I say so.”
Also, in a practical sense, the quote from George Washington is important. If any State can secede at any time for any reason, how could the US expect to ever defend itself in a war?
Given that California Prop 19 (decriminalizing small amounts of pot) seems likely to pass, we’re going to get to see another round of shameless right-wingers engaging in hypocrisy on “states rights.”
Bill Miller:
It seems patently obvious to me based on my reading of the Federalist Papers that ours is a Federalist system with each of the constituent governmental units having both distinct and commingled powers. That States are sovereign in some areas like education, and control of their militias, but subservient to the national government in other areas like national defense and trade policy. In areas where the powes conflict, the national government prevails under the Supremacy Clause. The founders envisioned popular sovereignty as co-extensive with State citizenship and the rights attendant thereto and they said so time and again.
I have yet see any refutation of Madison’s commentary on the Constitution found in Federalist 39 which I cited in my first post. Therefore any argument contradicting that position is rather like commenting on gravity while ignoring the writings of Sir Isaac Newton. I find no authority for the proposition that a contract once made cannot be broken, but I suppose the only remedy available to the aggrieved national government is force of arms to compel performance by the seceding state. All very Williston-esque if you ask me.
My position is simply that the issue of the right of a state to withdraw from the union was an open one until May 26, 1865. When Kirby Smith surrendered his troops west of the Mississippi, the issue was decided once and for all, and, as I mentioned before, the Doctrine of Ultima Ratio held sway.
To bring up new grievances under the rubric of “states rights” or some other discarded Constitutional interpretation seems a bit contrived to me. If you want to advocate secession, please just come out and do so, but understand the consequences that both history and law hold for the proponents of actual treason.
Vince: “Article V.”
I see, and under what theory of logic or contract law is ‘amending an agreement’ and ‘denying said agreement continues to exist’ are deemed the same thing?
The states never conferred any power to the Fed to force them to remain subordinate to a tyrannical Federal government; period. To so much as intimate anything otherwise is to re-write history and re-define the very nature of this republic in such a manner as to make the founders roll over in their graves.
BE: :And the specifically enumerated power of the Fed to keep a State from seceding, for any reason, is where?”
Article V.