O.K the background is I involved in a debate o n another forum with US citizen who is (or claim's to be a lawyer). He is arguing that that Norths actions in preventing the South from seceding was completely illegal based due to the precedent set by the Declaration if Independence.
My argument is as follows;
Yes the Deceleration of Independence contains at least an implied Right of Secession. (I even conceded that an argument can be made that the Right exists absolutely at law). However, my counter argument not withstanding the wording of the Declaration of independence was was as follows;
1) The 10th Amendment to the Constitution (pertaining to the powers of the States) and signed by all founding members of the Republic is not definitive in its wording and a legal argument can at least be made in support of the Federalist Cause. Furthermore all States having consented to the Constitution upon becoming members of the Republic. This means they were, at least initially bound to adhere to the mechanisms provided in the Constitution when seeking relief against the Federal Government i.e via the Supreme Court.
2) Prior to the Civil war no significant judgements had ever been issued by the Court re; the rights of the States as defined in the 10th Amendment. As certainly as far as the question of the right to secession goes the Supreme Court had never issued and guidance on this question which is one that clearly falls within its remit. So it was an open question how the Court would have approached the issue. Certainly the South never sought any such judgement. But even if it had and the Court had found that secession was a legally valid option the Court was within its rights to impose conditions and limitations on the process. In fact it almost certainly would do so.
3) Allowing for a peaceful/negotiated secession
- the South was legally obliged to follow any guidance from the Court;
- failing that it was at least legally and morally obliged to put protections in place for the rights of any citizen of the Republic who would adversely impacted by secession through no fault of their own. (I was thinking primarily to property rights etc if you were a Northerner who owned property in the South or who had lent money there and whose rights were potentially threatened unless protections were put in place)
- This is primarily because those rights existed prior to secession and could not be arbitrarily dismissed. Again the South did not did do this. As enacted the Secession deprived Northerners of certain rights. Likewise other pressing financial and administrative matters that would have indirectly impinged upon the rights of Northerners and Southerners alike were not dealt with.
Therefore the legality of the secession as undertaken by the South was flawed or at least open to challenge.
His response is to note that I'm not legally trained and any legal challenge to his position is without merit.
Do we have anyone with knowledge of a history or legal text that could clarify if I am completely wrong or not?
My argument is as follows;
Yes the Deceleration of Independence contains at least an implied Right of Secession. (I even conceded that an argument can be made that the Right exists absolutely at law). However, my counter argument not withstanding the wording of the Declaration of independence was was as follows;
1) The 10th Amendment to the Constitution (pertaining to the powers of the States) and signed by all founding members of the Republic is not definitive in its wording and a legal argument can at least be made in support of the Federalist Cause. Furthermore all States having consented to the Constitution upon becoming members of the Republic. This means they were, at least initially bound to adhere to the mechanisms provided in the Constitution when seeking relief against the Federal Government i.e via the Supreme Court.
2) Prior to the Civil war no significant judgements had ever been issued by the Court re; the rights of the States as defined in the 10th Amendment. As certainly as far as the question of the right to secession goes the Supreme Court had never issued and guidance on this question which is one that clearly falls within its remit. So it was an open question how the Court would have approached the issue. Certainly the South never sought any such judgement. But even if it had and the Court had found that secession was a legally valid option the Court was within its rights to impose conditions and limitations on the process. In fact it almost certainly would do so.
3) Allowing for a peaceful/negotiated secession
- the South was legally obliged to follow any guidance from the Court;
- failing that it was at least legally and morally obliged to put protections in place for the rights of any citizen of the Republic who would adversely impacted by secession through no fault of their own. (I was thinking primarily to property rights etc if you were a Northerner who owned property in the South or who had lent money there and whose rights were potentially threatened unless protections were put in place)
- This is primarily because those rights existed prior to secession and could not be arbitrarily dismissed. Again the South did not did do this. As enacted the Secession deprived Northerners of certain rights. Likewise other pressing financial and administrative matters that would have indirectly impinged upon the rights of Northerners and Southerners alike were not dealt with.
Therefore the legality of the secession as undertaken by the South was flawed or at least open to challenge.
His response is to note that I'm not legally trained and any legal challenge to his position is without merit.
Do we have anyone with knowledge of a history or legal text that could clarify if I am completely wrong or not?
Comment