Quote:
Originally Posted by TCLGirls
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I'm having a busy day today, with back to back conference calls, so I can't give this as much time and attention as it deserves, but this writer does a fair job of addressing that opinion...
"Three Supreme Court justices, one famous president, a bloody war, and the language of a modern pledge of allegiance offer conclusive proof that secession, while an entertaining philosophical exercise, has no legal basis. Their various opinions and conclusions, however, all have gaping holes.
Scalia?s positions are the most vapid. Secession, as accomplished by the Southern states in 1860 and 1861 and as discussed by the North at the Hartford Convention in 1815, is an independent act by the people of the states, and accomplished in the same fashion as the several conventions that occurred throughout early American history. The United States would never be a party to a lawsuit on the issue because secession, both de facto and de jure, is an extra-legal act of self-determination, and once the States have seceded from the Union, the Constitution is no longer in force in regard to the seceded political body. This same rule applies to the Article I, Section 10 argument against secession. If the Constitution is no longer in force?the States have separated and resumed their independent status?then the Supreme Court would not have jurisdiction and therefore could not determine the ?legality? of the move.
The Union, then, through a declaration of war could attempt to force the seceded States to remain, but even if victorious that would not solve a philosophical issue. War and violence do not and cannot crush the natural right of self-determination. It can muddle the picture and force the vanquished into submission so long as the boot is firmly planted on their collective throats, but a bloody nose and a prostrate people settles nothing. Oliver Ellsworth of Connecticut said in 1788 that he feared a ?coercion of arms? in relation to a delinquent state. ?This Constitution does not attempt to coerce sovereign bodies, states, in their political capacity. No coercion is applicable to such bodies, but that of an armed force. If we should attempt to execute the laws of the Union by sending an armed force against a delinquent state, it would involve the good and the bad, the innocent and the guilty, in the same calamity.? Ellsworth recognized, as did the majority of the founding generation, that force did not destroy sovereignty. It created artificial supremacy, but sovereignty, the basic tenant of the founding, could not be surrendered in such a manner. Sovereignty, in fact, cannot be surrendered at all; it can be delegated, as in the powers granted to the general government in Article I, but never surrendered.
His ?Pledge of Allegiance? analogy is the most absurd argument of the bunch. The modern pledge was written by Francis Bellamy, a socialist minister who wanted to indoctrinate American schoolchildren with a nationalist message, one based on the ?great speeches? of Daniel Webster and Abraham Lincoln in relation to the ?One Nation which the Civil War was fought to prove.? Sprinkle in some ?liberty and justice? from the French Revolution and you have a message that any good leftist nationalist can embrace. The founding generation would not have said such a pledge, if for no other reason that most did not view the United States as a ?nation? in the strict sense of the word, a single people.
The other issues involved in the debate are slightly more complicated, but in several instances come back to Scalia?s more simplistic analysis. In the Texas v. White decision, Chase implicitly reasoned that the Union was an ?indissoluble? contract between the ?American people? and the federal government, or in this case the people of Texas and the federal government. All contracts are intended to be perpetual. But if this were the case, how could nine States ratify a new Constitution while four States remained part of another Union in clear violation of the language of the Articles of Confederation. Changes to the Articles required the consent of all thirteen States, not nine, and thus the Constitution can be viewed, in part, as an act of secession.
Moreover, James Madison argued that the Union was a different type of contract. ?We are not to consider the Federal Union as analogous to the social compact of individuals: for if it were so, a majority would have a right to bind the rest, and even to form a new constitution for the whole? .? The Constitution was framed by the unanimous consent of the States present in convention assembled in Philadelphia, but it had no teeth until the States, in convention, ratified it. Even at that point, Madison suggested, the States could not bind the rest into accepting the document or remaining in the Union. The Constitution does not have a coercive principle, as Ellsworth called it. An ?indissoluble? Union would suggest that it does.
Waging war ?against them (the States)? is an act of treason, and as per the Constitution, a State can only be ?protected? by the central government on the application of the legislature or the executive in the case of invasion. Lincoln violated both constitutional safeguards against coercion by the central government in 1861, of course only if the states remained in the Union, as he insisted they did. If not, war required a declaration from Congress, something Lincoln did not have, and by declaring war, Congress would have recognized the Confederate States as a legitimate government. Either way, Lincoln violated the Constitution, thus rendering the ?bloody nose? argument against secession void."
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