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yellojktLast week was the 151st anniversary of the beginning of the Civil War, and yesterday was the 151st anniversary of Virginia’s declaration of secession from the United States. The outcome of the Civil War itself seems to have put an end to any questions about the constitutional legitimacy of secession, but there is no reason it should have. Might, as the cliche goes, does not make right, and so the constitutional question of whether the federal government is acting within its rightful powers to prevent a state from peaceably withdrawing itself from the Union cannot have been settled simply because the federal government was able to do so successfully. And of course, the Confederacy did itself and the underlying question no favors by firing on Fort Sumnter, making the withdrawal not so peaceable and providing Lincoln with a justification for sending in the troops. But I think the question still remains: Does the constitution prevent states from seceding from the Union?
It is interesting to note that between December 20, 1860 and April 12, 1961, the day on which Confederate troops fired on Fort Sumnter, 7 states declared secession from the Union, and neither President Buchanan nor President Lincoln, despite his rhetoric, took any official action against the seceding states. Following the war, Jefferson Davis was arrested for treason, but was never in fact tried, and while there were plenty of political reasons for the blanket pardon granted to those in the Confederacy, uncertainty about the lack of constitutional legitimacy of secession was certainly among them. And the southern states were not even the first to contemplate secession. During the War of 1812, a delegation of Federalist representatives from New England broached the subject of seceding, with the Massachusetts governor even considering coming to terms of a separate peace with Great Britain.
Certainly, in any event, it is difficult to square a view of the constitution as prohibiting secession with the foundation of the United States itself, of which an animating feature was the very presumption that a people could, by right, “dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them”. Indeed, reading the Declaration of Causes of Seceding States, one can’t help but hear the echo of the original Declaration of Independence, upon which they were so obviously modeled.
So, putting aside the moral question with which the secession movement of 1861 was inextricably linked, ie slavery, was the Federal government justified in waging war against the South, and does a proper reading of the constitution really grant it the power to wage such a war?
Filed under: Constitution, secession, states' rights | Tagged: secession, states' rights |
All Things in Moderation 
If secession is legal, is also expulsion?
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bsimon:
If secession is legal, is also expulsion?
Good question. California beware.
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San Andreas will take care of the worst parts.
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Which is not to change the subject; the secession question is an interesting one.
I posted the below elsewhere in another similar discussion. MN Post is a local online-only news site. Eric Black is a former reporter for the local paper, the Star Tribune.
http://www.minnpost.com/ericblack/2011/04/12/27402/what_if_lincoln_had_allowed_the_south_to_secede
Says Black (a journalist, not a lawyer; but one who has written a book
on the Constitution):
“The U.S. Constitution does, explicitly, empower the federal
government (the Congress, actually, Article 1, Sec. 8) to “suppress
insurrections.”
The question of whether this was an insurrection or a valid
“secession” is much more difficult. In case you’re not up on such
matters, you should know that the seceding Southern states left the
union by the perfect reversal of the process by which they got in.
They held elections (open to white male voters only, of course) to
choose delegates to state conventions at which the original decision
to ratify the Constitution (also at state conventions with elected
delegates) was made.
Lincoln’s position was that these unratifications were impossible and
therefore nullities.
But, so far as I know, he had no constitutional language on which to
base that position. All he had was his belief that secession was
impossible because if states were free to get in and out of the union,
a government conceived in liberty and dedicated to equality could not
“long endure,” as he put it years later at Gettysburg.”
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I believe the legal answer is that Lincoln never treated it as an actual secession, but as a rebellion of individuals and parties.
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banned:
I believe the legal answer is that Lincoln never treated it as an actual secession, but as a rebellion of individuals and parties.
Perhaps, but his treatment begs the question. If the Confederate states could legitimately secede, then even if we accept that they initiated hostilities by firing on Fort Sumnter, it was plainly not a “rebellion” but rather a foreign power engaging in hostile activity. Only if we assume first that they could not legally secede could their actions be deemed a “rebellion” against the US government.
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If I’m not mistaken, isn’t there a Congressional approval requirement for statehood? If so, I don’t think the southern states got that. But, of the Constitution doesn’t explicitly allow it can be amended to do so.
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My mother recently did some genealogical research and found her great-grandfather’s military service discharge papers which listed the war as the “War of Southern Insurrection” which is a neat obverse of the more common (sometimes tongue-in-cheek, sometimes not) ‘War of Northern Aggression’.
That said, the outcome of the war more or less renders any Constitutional debate moot. It was decided not by justices but by bullets.
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Yeah, amending the Constitution would be a heavy lift, but I think the fact that it would be for the purpose of expelling California might be enough to get it over the top. 🙂
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“It is needless to discuss at length the question whether the right of a State to withdraw from the Union for any cause regarded by herself as sufficient is consistent with the Constitution of the United States.
The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to “be perpetual.” And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained “to form a more perfect Union.” It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?”
Texas v. White
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Article I Section 10 has always struck me as precluding secession. The Constitution, once entered into, was not a compact among states, it was, in fact, the deliberate ceding of sovereignty, by former states, to a federal government.
Section. 10.No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws; and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
If no state can do any of the precluded acts without congressional approval, no state can secede without congressional approval. Notice, New Yorkers, that the Port Authority of New York required congressional approval under this section, because it was an interstate compact.
We in TX wonder if our authority under the Annexation to split into 5 states requires Congressional approval, and the issue is very contentious among some. Only pride keeps my state from having ten US Senators.
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Mark:
If no state can do any of the precluded acts without congressional approval, no state can secede without congressional approval.
But presumably, upon secession, it no longer qualifies as a state, and is therefore no longer controlled by any laws governing “states”. And, since a state is specifically not precluded from seceding without congressional approval, by implication of Amendment X it must necessarily retain the power to do so.
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Scott – What exactly do you think “secede” means? I had thought we were talking about a state determining that it had sovereignty as a nation and was no longer a part of the sovereign USA. That is the determination that a state cannot make, without Congressional approval, without violating the Constitution, or so I think. A state must come to Congress and say “we want to print our own money and have our own ambassadors and have our own military”. Congress refuses. State rebels. Insurrection. A state announces it will not come to Congress but claims the right to sovereignty by reason of it wants to, and Congress can F itself. Insurrection.
I think you are way off base with the notion a state can claim these rights without asking Congressional permission because the word “secede” is not in the document.
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Mark:
What exactly do you think “secede” means?
Withdrawing from the Union.
I had thought we were talking about a state determining that it had sovereignty as a nation…
I think it would be more accurate to say we were talking about a state determining to reclaim its full sovereignty. Clearly, by entering the Union, states give up some degree of sovereignty, specifically with regard to those things the constitution prohibits them from doing. But just as clearly they retain some degree of sovereignty. Otherwise there would be no need to specify things that states cannot do, apart from simply saying “States cannot do anything Congress doesn’t want them to do”. The whole point of the 10th amendment was to affirm that states retained sovereign rights apart from those that the constitution specifically prohibited them from retaining. If that was not its intent, what was it?
I think you are way off base with the notion a state can claim these rights without asking Congressional permission because the word “secede” is not in the document.
States are prohibited from claiming those rights within the context of being a part of the union. Sure, a state that retains representation in Congress and the ability to vote for President and freedom of movement across borders for its citizens and all of the other privileges that come as being a part of the Union cannot claim these rights without asking Congress. But a seceding state is not attempting to print money or appoint ambassadors or raise an army as a member state. It is declaring itself no long a member state. Prohibitions against the former do not imply a prohibition against the latter.
Again, the constitution pretty clearly allows that states retain a wide range of latitude in terms of action, limited only by that which is specifically prohibited by the Constitution. The ability to withdraw from the Union is obviously not among those prohibitions, and so, it seems to me, is plainly retained by the states.
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Mark:
Suppose I joined a golf club, and one of the membership rules was that I could never play on another course without permission of the club Board. I happily join, and for years I pay my dues and enjoy the privileges afforded me as a member of the club. Then one day the Board decides that it will no longer provide caddies for players. I don’t particularly like this, and I complain, but I eventually live with it because I can always hire my own caddie and bring him to the course myself. Then one day the Board outlaws caddies altogether. Now I’m really pissed, but again I live with the new rules, carrying my own clubs. Then the Board announces that it is introducing riding carts, and worse, the use of carts will be mandatory. No walking and carrying of clubs allowed. That’s the final straw. I commit to having nothing to do with the club ever again, and I announce that I am withdrawing from membership.
Question: Does my initial agreement to never play on another course without the permission of the club Board imply to you that I need the Board’s permission to withdraw from being a member?
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In terms of what constitutes a sovereign nation, the states have virtually no rights under the Constitution. This is the point of divergence for us, I think.
But let us do some thought experiments. You live in CT? CT, one of the original 13, secedes. It has thus threatened the American citizenship of its residents, as well as the US CG Academy; the Appalachian Trail NP, Indian Reservations in trust to BIA, the New London sub station, and stuff I never read about because I don’t live there.
First and foremost, if a group of American citizens were denied their citizenship rights by CT seceding, which they would be, it would be the obligation of the USA to protect those citizens from CT. The USA could no more recognize the secession of CT by fiat then it could recognize Mexico’s claim to Texas and California. To do so would be to abandon its citizens to a foreign power. No matter what CT thought it could do, it could not secede without Congress’ approval.
You are repeating the notion that once a state secedes it is not bound by the Constitution. I will say that once a state defeats the USA in the insurrection that would be true. Not before.
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As to what you wrote about membership in a golf club, it is so wanting in relevance to a discussion of sovereignty that I wonder if you actually see nation states as trivial endeavors. This could be a philosophical possibility, even if it is not of this world, I suppose.
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Mark:
In terms of what constitutes a sovereign nation, the states have virtually no rights under the Constitution.
But that seems to me to be simply and obviously wrong. For example, one of the primary things that constitutes a sovereign nation is the power to make laws governing citizens. Even in our post Civil War and post New Deal world in which the rights of states have been drastically degraded, people are still considered to be citizens of individual states subject to laws made by state governments. In other words, states still retain some measure of sovereignty even today, and under a pre-Civil War understanding of the constitution and the relationship between states and the federal government, they retained even more. And those powers were neither granted by nor derived from the federal government. The constitution very clearly (again, 10th amendment) considers those powers to exist independently of the constitution, to be limited by it only in specifically defined instances. If that is not a measure of sovereignty, I don’t know what is.
First and foremost, if a group of American citizens were denied their citizenship rights by CT seceding, which they would be…
Well, let’s examine that assertion. Is it really the case that they would be? Perhaps in our post-incorporation interpretation of the constitution that might be the case, but in 1860 what constitutional rights of citizenship were being denied to, say, South Carolinians upon secession that the federal government was obliged to protect? And what steps were taken to protect them?
As to what you wrote about membership in a golf club, it is so wanting in relevance to a discussion of sovereignty…
I am surprised that the relevance of the analogy has gone over your head. It seems obvious to me. My relationship to the golf club is the same as, say, Virginia’s relationship to the Union, in that both I and Virginia were individual sovereigns, and each of us relinquished some measure of freedom of action as a pre-condition to entering into an association with other sovereigns. In the case of Virginia, you seem to think that, by relinquishing some measure of freedom of action, it has necessarily relinquished any right to withdraw from the association. I’m wondering if this same logic applies to me with regard to the golf club, and if not why not.
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Mike (from Texas v White):
What can be indissoluble if a perpetual Union, made more perfect, is not?
This is pure sophistry. What if the indissolubility is one thing that makes it less than perfect? A dissoluble Union would, all other things being equal, therefore necessarily be “more perfect” than an indissoluble union.
Beyond the sophistry, it must be noted that the Articles were, in fact, no longer controlling law. The whole point of the Constitution was to replace the law as set out in the Articles. If article XIII, in which the Union was declared to be perpetual, was still controlling law despite the absence of such a declaration in the Constitution, then what other parts of the Articles were/are still controlling law? How are we to know which parts are still in effect and which are not?
Also note this from the introduction of the original Articles:
Note that of the 11 members of the Confederate states, only 4 are referenced in the Articles of Confederation. All of the others joined the Union well after the Articles of Confederation had become defunct. So, even if we accept the dubious notion that the “perpetual” declaration in the Articles perpetually bound those who agreed to it, still nearly two-thirds of the seceding states never in fact did sign on to any “perpetual” clause, so it is difficult to see by what logic it could be applied to them.
BTW, just as an aside, using the logic of Texas v White, I wonder if, when two people get married, they utter the words “til death do us part”, that means that the law should prevent them from ever getting divorced.
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“If the Confederate states could legitimately secede, then even if we accept that they initiated hostilities by firing on Fort Sumnter, it was plainly not a “rebellion” but rather a foreign power engaging in hostile activity.”
That would mean we annexed the territory by war, not unlike how we acquired much of the west, not to mention puerto rico & other territories.
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That would mean we annexed the territory by war, not unlike how we acquired much of the west, not to mention puerto rico & other territories.
I slept through most of the Reconstruction section of American History class, but didn’t the seceded states have to basically re-apply?
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I slept through most of the Reconstruction section of American History class, but didn’t the seceded states have to basically re-apply?
No. Lincoln wanted them all back right away, and while he was alive, once occupied, TN and AR quickly restored civil unionist government, before the others, IIRC. So the questions were how long military occupation should last, and how the republican form of government guaranteed to the states by the Constitution would be restored. The radical Rs were not as desirous as Lincoln and Johnson in getting the South fully civilian controlled immediately.
I think one issue was that now that blacks counted one whole person per person instead of 3/5, the new South would get a lot more votes in the HoR. Sometime in the 1870s we had a big recession, the Ds retook the Congress, and Reconstruction ended. Before that, from 1868 I think, it had got away from Lincoln’s nearly instant reconciliation into an alien occupation.
In 1866 Sheridan had his HQ in a building now on the UT campus. He had 30K troops in TX, although they served triple duty as the Reconstruction occupation force, as Commanche fighters, and to give a signal to Maximillian in Mexico that we would brook no French incursions over the Rio Grande.
Sheridan reportedly said in 1866, confronted with his first Austin taste of real heat, “If I owned hell and Texas, I would rent Texas and live at the other place!”
Freaking carpetbagger.
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Mike – “It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?””
I would argue that the start of the sentence, written in substantially bigger font, takes higher precedence. If We the people can form a union, it seems to me the spirit suggests that We the People could remove ourselves, if we so desired. One could also argue that the “more perfect union” is a response to the set up of AoC, which was “a firm league of friendship with each other”. Making the Consitiution a stronger contract than the AoC doesn’t seem to me to preclude succession.
Mark, I don’t think sucession and the items listed are an apples to apples comparison. It is one thing to be doing those things as part of a union (because in effect as part of that union you are doing those thing on behalf of the union). Printing your own currency for instance. You are under contract, so to speak, to use common currency. Sucesson is something different. You would not secede on behalf of the other states or the fed gov. You would on behalf of the people of your (former) state. Additionally, I think the 10 amendment applies….
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Dave! – all the listed items were badges of sovereignty, which were given up. That is all I am saying. To attempt any of them would in fact be an act of secession, an act designed to give a state sovereignty that it does not have. The Tenth Amendment does not preserve a right that is expressly denied.
Is this more than an academic discussion for anyone here? That is, does anyone think secession is a good idea?
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Mark, it’s academic for me at this point, but I could see a situation in the future, given the larger and larger role the Executive branch has taken over our lives. Congress has ceded a lot of power and at some point some states citizens may decide it’s enough.
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Scott:
How are we to know which parts are still in effect and which are not?
I think Chase’s purpose behind laying out the Articles is not to show that they are controlling, but to show the legislative history to how we got to the Constitution.
when two people get married, they utter the words “til death do us part”, that means that the law should prevent them from ever getting divorced.
Chase’s opinion in Texas v. White explicitly says:
So, you could get divorced through consent of the States (spouse) or revolution (however that translates to marriage).
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I think this backs up what I wrote earlier. Lincoln took the legal position that the states never actually seceded:
“In late 1863, Lincoln announced a formal plan for reconstruction:
A general amnesty would be granted to all who would take an oath of loyalty to the United States and pledge to obey all federal laws pertaining to slavery
High Confederate officials and military leaders were to be temporarily excluded from the process
When one tenth of the number of voters who had participated in the 1860 election had taken the oath within a particular state, then that state could launch a new government and elect representatives to Congress.”
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That was Lincoln’s 10% compromise, I think.
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I would say that the strongest argument against the right to secede is that the Articles of Confederation formed that type of union with and was deemed unsuccessful and in need of replacement
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To what extent does Article IV, Section 3 affect states’ ability to secede?
“Section 3 – New States
New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”
Once a state joins the union, have they not ceded power to Congress to control the territory of that state?
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bsimon:
I think “territory” in that sense is more like national parks and federal buildings. So, that territory could be seized by the state, I guess, or you could have something like Gitmo — a small US enclave in a foreign country.
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Scott,
Be careful with analogies that compare golf club caddies to slaves. People might interpret that the wrong way.
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yello:
Be careful with analogies that compare golf club caddies to slaves. People might interpret that the wrong way.
Thanks for the advice. I suspect (and certainly hope), though, that most people here can see that there was no comparison between caddies and slaves. I was obviously drawing an analogy between my relationship with the club and a seceding states’ relationship with the Union, not my reasons for wanting to leave the club and the south’s reasons for wanting to leave the Union. My reasons for wanting to leave the club could just as easily have revolved around changing the greens from Bermuda to Bent grass, or adding water hazards to too many holes, and the analogy would not have suffered for it.
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No, Scott, the powers you rely upon to try to equate statehood with sovereignty are not unique to nations but are available even to municipalities.
Unique to nations is the power to raise a military, the power to appoint foreign emissaries; usually, but not always, the power to print currency and postage and coin money; but always the control of borders, trade, and citizenship. These are the powers the Constitution denies to the states.
States that are not sovereign powers do not have a method to become sovereign absent force, or without the permission of the true sovereign. It does not matter if they were ever sovereign nations, like Texas, or never sovereign anything, like Arizona, or quasi sovereign colonies, like CT, or never sovereign colonies, like Florida. They are simply and obviously not sovereign nations under the Constitution.
You have not in any way made your golf club analogy relevant by suggesting that I do not understand it. Neither you nor your golf club are sovereigns. You are simply a member of a social club in your example. Give up your passport to taste what losing citizenship is about. When your social club has a military and the power to control trade, commerce, and whether you have a “card” that lets you visit Mexico or Europe we can say “this is no mere social club” and “Scott is more than just a mere member.” Your example has no application.
Sovereignty of a nation depends, in the end, on the force it can muster. By voluntarily relinquishing the ability to raise a credible force in every way, under the Constitution, the states can only secede with permission, or by mustering superior force. The south came close to mustering sufficient force.
That is a chapter I hope we never revisit.
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Mark:
No, Scott, the powers you rely upon to try to equate statehood with sovereignty…
I am not equating statehood to sovereignty. I am saying that under the constitution states retained some degree of sovereignty.
…are not unique to nations but are available even to municipalities.
Yes, and to the extent that a municipality’s freedom for independent action is constitutionally protected (either by a state constitution or the national constitution), that municipality retains some measure of sovereignty.
States that are not sovereign powers do not have a method to become sovereign absent force, or without the permission of the true sovereign.
Ignoring any ambiguity of what it means to be a “sovereign power” (more on which below), as a practical matter what you say is obviously true. To use the language of the Founding Fathers, when one people wish to dissolve the political bands that have connected them with another, they will either be “allowed” to do so freely by those others, or they will have to use force to make it so. And clearly during the secession crisis the federal government had both the will and the physical power to “disallow” it from happening. But the question before us is not whether the federal government had the will or physical power to withhold “permission”. The question before us is whether it had the constitutional power to withhold “permission”. Pointing out the obvious nature of reality which dictates that a seceding state will either be “allowed” to leave or will have to fight to leave does not give us any insight into that question.
They are simply and obviously not sovereign nations under the Constitution.
This is a straw man. At no point have I argued that they are sovereign nations under the Constitution. I have argued that under the constitution they retain some measure of sovereignty. And they do.
The nature and uniqueness, some might even say genius, of our constitution is that it quite explicitly does not vest supreme power (one definition of sovereignty) in the federal government. In fact, the whole point of the constitution was to limit the power that the federal government could legitimately wield, leaving states independent (another definition of sovereignty) to exercise large swaths of power on their own, away from any interference of the federal government. It was not a mere oversight, for example, that the First Amendment specifically prevents Congress, not the states, from passing certain laws. And again, the 10th amendment (my question to you about which remains unanswered) makes this fact plain. Although it is no longer seen this way (due in no small part to the Civil War itself), the constitution was originally designed not to entirely subjugate state sovereignty to the federal government, but rather to define the very limited areas in which that sovereignty was subjugated.
The question is whether those limited areas include the right to withdraw oneself from the Union. I see nothing in the constitution to indicate that it does.
You have not in any way made your golf club analogy relevant by suggesting that I do not understand it.
It is a fortunate thing, then, that I wasn’t trying to make it relevant by suggesting that you don’t understand it. I think it is relevant regardless of your understanding. However, since I offered the analogy not for its own sake but to advance the discussion, which it obviously is not doing, I’ll not pursue it further.
BTW, I also remain interested in which constitutional rights to citizenship were being denied to South Carolinans following their declaration of secession in December, 1860.
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Scott, I only have a moment to address your Tenth Amendment concern. The Tenth Amendment is a tautology – here, from your perspective, it says that all is retained that has not been surrendered. National sovereignty having been surrendered it is not retained, and no pretense of it is available to states 14-50, either, entering subject to the Constitution. TX carves some exceptions by having entered under Treaty.
Once sovereignty is surrendered, it does not exist. The Tenth Amendment does not create for a state what does not exist for a state by reason of the Constitution.
The Constitution is not a Treaty, like NATO, or the EU, which members can abrogate because they are sovereign. The only sovereign in the Federal Union is the USA. The Tenth Amendment retains nothing for the states in the context of national sovereignty. If a state claims separate national sovereignty, not having obtained Congressional approval, it [potentially mortally] affronts the national sovereignty of the union, reserved in the Constitution. The state cannot get a hearing in court to secede if the Congress will not allow it. Its recourse is force, not something hidden in the inkblot of the Tenth Amendment. Robert Bork called it the inkblot, btw. Edit: That was from memory. He actually called the 9th an inkblot. I apologize for misleading the reader.
I don’t have the knowledge to address SC residents and US citizenship in 1861. Sounds like a doctoral dissertation in US History for someone.
Let me add that White v. Texas, in ruling secession unconstitutional, said that the residents of the rebelling states remained American citizens – that only if their revolt had succeeded would they have lost their citizenship. The holding complies with Hamilton’s views in The Federalist, btw. A state can leave by consent of the Union or by successful revolution.
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Mark:
National sovereignty having been surrendered…
But that is precisely the question…what exactly has been surrendered? You label it with the all encompassing “national sovereignty”, but of course that phrase appears no where in the constitution, and what has actually been surrendered are very specifically defined rights/powers, with the explicit notation that those and only those rights/powers have been surrendered, with all others being retained.
The Tenth Amendment does not create for a state what does not exist for a state by reason of the Constitution.
I don’t think it creates anything. I am just saying it recognizes rights and powers that exist independently of the Constitution. In fact I would go so far as to say that no state power exists “by reason of the Constitution”, because it is not the function of the Constitution to define the powers of states. States derive their powers from their own state constitutions, or their own citizens. The only power that exists “by reason of the Constitution” is the power of the federal government, and that power is explicitly limited by the Constitution.
I don’t have the knowledge to address SC residents and US citizenship in 1861. Sounds like a doctoral dissertation in US History for someone.
I asked you only because you claimed that rights of citizenship “would be” denied to residents of a seceding state simply by the fact of secession. I don’t think that is the case, but was willing to entertain your reasons for making the claim, and figured since we had an actual example of secession, it would be a better example than a hypothetical.
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“I think “territory” in that sense is more like national parks and federal buildings. ”
So the seceding state is stealing our territory and/or property, in addition to our citizens, as Mark noted.
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Scott, more Ramesh Ponnuru looking at Pew and the RWoW. My favorite bit :
“2) Readers of my gender-gap column will not be surprised to learn that while women are more likely than men to support Obama, both sexes are moving against him in unison. “Obama has lost ground among both men and women at about the same rate over the past month.” (The poll still has him four points up, though.) The size of the gender gap “remains comparable to those in previous surveys during the current campaign, as well as past election cycles.”
This may hurt the narrative.
http://www.nationalreview.com/corner/296475/polled-you-so-ramesh-ponnuru
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Mark – “A state announces it will not come to Congress but claims the right to sovereignty by reason of it wants to, and Congress can F itself. Insurrection.”
I don’t think it matters really why a state (meaning the people of that state) wants to. If the people of that state want it for any reason (they want to print their own money or they want to be exempt from Obamacare or they don’t like daylight savings time), they should have the recourse to secede. I am not sure that one would automatically lose their US citizenship were they to live in a state that seceded – there are American citizens living abroad now. It is insurrection only if you think that the state is not allowed to do that. The members of the state would look at it as secession. The US gov would probably look at it like insurrection. That would make for an interesting SCOTUS event. There would be issues with the Federal parts of the state – Nat parks and such.
As to whether this is an academic discussion, I could see a number of scenarios where states become disallusioned with the direction of the US and contemplate it. I would say in the next 100 years, there is a decent chance that this will become more than an academic question.
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Dave!, because the state is not a sovereign and the federal gummint is a sovereign, it only matters what the federal gummint thinks, until the state or states can get Congress to approve, or until they have the firepower to become sovereigns.
There is no SCOTUS issue.
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Mark, are you agreeing that with Federal approval, there would be a path to state secession? As in Congress okay’s say, Hawaii’s secession?
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Yes, George.
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