Is the American civil war really over??

[Shek]

but would that not mean that in theory (prior to Texas v White) the states could secede first and THEN form a new state and create treaties since the consitution stops applying to them after they left the union?

Tarek,

Yes and no. Remember, courts don't rule in theory (at least not in American jurisprudence, which includes the SCOTUS), but instead, must rule on specific cases. Thus, when settling questions about the Constitution that have not been visited by the courts before, you will by procedure find something unconstitutional after the fact. So in this case, the SCOTUS found that unilateral secession was not constitutional, and so affirmed that it was instead rebellion.

However, the language of the majority opinion didn't say that secession was anywhere and everywhere unconstitutional - by mutual consent between the state(s) that wished to secede and the union itself, secession could occur. Thus, if California wanted to secede and state conventions from the other 49 states agreed, then most likely, that would be constitutional.

However, because the language in the Texas v. White decision doesn't specifically mention procedure on how to do this, someone that could prove standing could challenge the decision and the courts could rule that procedure consistent with the intent of the constitution and framers wasn't followed, and therefore rule the matter in which the secession took place was unconstitutional (they could also overturn the precedent, but American courts follow pretty religiously the practice of stare decisis, or leaving settled manners settled, and so this is a rare event in the history of American courts - you have to find some really bad decisions - Dred Scott, Plessy v. Ferguson, etc., to find where precedent is overturned).

[Shek]

The States could dissolve from the Union and form their own perfect union among the states. The original 13 states never wanted a more powerful central government, and this is quite obvious in all documentation in the library of Congress.

No. They wanted a more powerful government than provided for in the Articles of Confederation. They wouldn't like the reach of the government today, but they also foresaw a need to potentially adapt the Constitution, which is why they provided a means for amendment that would follow the wishes of the people. It's also pretty clear that the vast majority of the founding fathers saw the American experiment in democracy as requiring permanency if it were to succeed, and so while they explicitly provided a means to enlarge the Union, they didn't provide a means to leave the Union, which makes complete sense. There was no need to provide a means for national suicide, as the people of a state could revolt from tyranny based on moral grounds, just as they had revolted from England based on the moral grounds laid out in the Declaration of Independence.

[Tarek Morgen]

@Shek

I needed to read it three times but I think I got it now, but if I may I have a follow up. You showned how California might legally secede, but what about California (or any other state) getting kicked out?

Would a state convention with a 2/3 majority be able to do this against the will of the affected state?

[zraver]

So not the seccession itself was illegal but the way it was done? As it would always require 2/3 of the states approval?

The only way to legally break up the USA is a constitutional conventional called by either Congress or the states. If the states call it, it requires a that 2/3rds f the states agree to seat the convention. Once a constitutional convention is seated it5 has been empowered by the Constitution and it can do what ever it wants including throw the constitution out, break up the country, appoint a king etc there are no limits on its powers other than what the states agree to ratify in terms of a new government.

[zraver]

@Shek

I needed to read it three times but I think I got it now, but if I may I have a follow up. You showned how California might legally secede, but what about California (or any other state) getting kicked out?

No, that is the one express limit on a constitutional convention.

Article V

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

[Julie]

Anf that doesn't change the fact that it was the United States that was Sovereign and who Great Britain dealt with. Yes its power was severely limited, King George had limits to but it was the nation of the United States.

There is no question the name was the "United States."

What is at issue here is what they were united in, or under. Was the nation as a whole sovereign, or the individual states sovereign, and at what point was it, or they, sovereign.

These are important questions due to the change in the articles to the Constitution. Some states did not enter into this (ratify) until later, but even so, war was not declared upon them for not doing so.

This is where interpretation is misleading.

[zraver]

There is no question the name was the "United States."

What is at issue here is what they were united in, or under. Was the nation as a whole sovereign, or the individual states sovereign, and at what point was it, or they, sovereign.

That is the nature of the federal system in both versions (AoC and the Constitution). On some areas the states are sovereign on others the national government. But no state has had the ability to declare itself fully sovereign and deal with other nations from that position. The ultimate sovereignty has always been reserved to the United States. Any other reading requires parsing and taking things out of context or out of order.

These are important questions due to the change in the articles to the Constitution. Some states did not enter into this (ratify) until later, but even so, war was not declared upon them for not doing so.

This is where interpretation is misleading.

Why would a state have war declared on it for not ratifying the Constitution? That is a red herring because it never happened, was never threatened and no mechanism existed for such.

The argument is did the CSA have the right to form? The answer is clearly no. From the birth of the US it was the national government of the United States that has held the right of discourse with other nations and held it exclusively. From the Contintental Congress through the treaty of Paris and AoC and under the Constitution.

The Constitution in force when the confederacy was formed in fact specifically prohibited the actions the leaders of the CSA took. Now might a single state have seceded? That is a maybe prior to Texas v White, but no state ever tried singly. It was always the intent of those who formed the CSA to withdraw from the Union as a block and to form a new political body as a block.

The Civil War, Texas v White and Virginia v Tennessee have settled that question once and for all. Once you join the USA you can't back out later without either defeating the US by force or arms, or without the consent of the US.

The next and probably only hope to change that dynamic is is any of the intrastate secessionist movements ever gain enough Traction to slice off Northern California and Eastern Washington to redress valid political grievances. But these proposals do not change national allegiance.

[Julie]

No. They wanted a more powerful government than provided for in the Articles of Confederation. They wouldn't like the reach of the government today, but they also foresaw a need to potentially adapt the Constitution, which is why they provided a means for amendment that would follow the wishes of the people. It's also pretty clear that the vast majority of the founding fathers saw the American experiment in democracy as requiring permanency if it were to succeed, and so while they explicitly provided a means to enlarge the Union, they didn't provide a means to leave the Union, which makes complete sense. There was no need to provide a means for national suicide, as the people of a state could revolt from tyranny based on moral grounds, just as they had revolted from England based on the moral grounds laid out in the Declaration of Independence.

I like this post, so I am going to respond to it.

I disagree about a more "powerful" government. I will say they went to the convention seeking a "stronger" government regarding stability in commerce and foreign relations, cuz we still had Britain and France as thorns in our side. I have read every note of Madisons for a three month period in that convention, and nothing can make me believe that the States relinquished their independent sovereignty as to domestic issues.

We will have to agree to disagree.

[zraver]

I like this post, so I am going to respond to it.

I disagree about a more "powerful" government. I will say they went to the convention seeking a "stronger" government regarding stability in commerce and foreign relations, cuz we still had Britain and France as thorns in our side. I have read every note of Madisons for a three month period in that convention, and nothing can make me believe that the States relinquished their independent sovereignty as to domestic issues.

We will have to agree to disagree.

They gave the Federal government- the power to regulate interstate commerce, set weights and measures, issue currency, take on debt, set taxes, run a post, set up courts, set up law enforcement... Got pretty detailed inf act but didn't mention secession except by negative inference.

[Shek]

I like this post, so I am going to respond to it.

I disagree about a more "powerful" government. I will say they went to the convention seeking a "stronger" government regarding stability in commerce and foreign relations, cuz we still had Britain and France as thorns in our side. I have read every note of Madisons for a three month period in that convention, and nothing can make me believe that the States relinquished their independent sovereignty as to domestic issues.

We will have to agree to disagree.

Z hit on many of the ways that they strengthened the federal government at the expense of the state governments on domestic issues. The fact a federal court system was set up that held sovereignty over the state courts on matters that were undertaken by the court is a direct affront to your claim that the states didn't relinquish any sovereignty, the same court system that later found Southern secession to be null and void.

[Julie]

Yes as to commerce. Trade, money, taxes, but the Second Amendment was to protect the State's sovereignty against a tyrantical central government. Checks and Balances.

If that doesn't convince you, look at our government today. The States (the people) are becoming completely engulfed by debt for generations to come.

Call it tariffs, taxes, trade deficit....and there is nothing to stop it.

There was a line drawn in that Constitution as to the powers of the Central Government, and it has long been crossed.

If the Federal Government has all this authority, what is the point in having individual states then?

Please, someone answer me that.

[Shek]

Yes as to commerce. Trade, money, taxes, but the Second Amendment was to protect the State's sovereignty against a tyrantical central government. Checks and Balances.

If that doesn't convince you, look at our government today. The States (the people) are becoming completely engulfed by debt for generations to come.

Call it tariffs, taxes, trade deficit....and there is nothing to stop it.

There was a line drawn in that Constitution as to the powers of the Central Government, and it has long been crossed.

If the Federal Government has all this authority, what is the point in having individual states then?

Please, someone answer me that.

Julie,

It's the Tenth Amendment, and there's a division of sovereignty. Additional amendments have changed the relationship between the central government and the state governments as well. The reality is that people view the United States today in singular form and not in the plural. However, I'm not sure where this line of conversation is leading or what it's trying to connect back to.

[Station 22]

Yes as to commerce. Trade, money, taxes, but the Second Amendment was to protect the State's sovereignty against a tyrantical central government. Checks and Balances.

If that doesn't convince you, look at our government today. The States (the people) are becoming completely engulfed by debt for generations to come.

Call it tariffs, taxes, trade deficit....and there is nothing to stop it.

There was a line drawn in that Constitution as to the powers of the Central Government, and it has long been crossed.

If the Federal Government has all this authority, what is the point in having individual states then?

Please, someone answer me that.

Yes, look at what the 17th Amendment has done to us. No longer are Senators beholding to the desires of the State governments, so Federal spending has blossomed since that populist change. Senators were there to represent the interests of the States, not the individual. That is no longer the case; the Senate is now merely a more compact House of Reprehensibles with delusions of self importance.

[Shek]

Yes, look at what the 17th Amendment has done to us. No longer are Senators beholding to the desires of the State governments, so Federal spending has blossomed since that populist change.

Care to provide causal evidence? Please disentangle your thesis from the potential causality provided by the amendment passed just before the 17th Amendment.

Senators were there to represent the interests of the States, not the individual. That is no longer the case; the Senate is now merely a more compact House of Reprehensibles with delusions of self importance.

Why then did the states ratify it, let alone force the issue to come to a proposed Constitutional amendment? What were the problems cited by those in favor of the 17th Amendment?

[Station 22]

Please look at the chart here titled US Federal Government Spending and note when the rise in Federal spending occured.

I am amazed the state governments ratified the 17th Amendment. I can only surmise that the poplulist movements in force during the era had a large part to play in the desire to change the election method. It certainly was a component of the further lessening of States' Rights. Note what large block of states has never ratified the amendment.

You cannot disentangle the 16th and 17th Amendments, where profligate Federal spending is concerned-they go hand in hand. Remove the check on controlling Federal spending by allowing people to vote directly for a House and Senate that can vote one state another state's money, then essentially write a blank check for Congress to spend that money and you will get a spike in Federal spending around 1916-17. Sure, there was a war cranking up for the US at that time, but the postbellum levels of Federal spending never declined appreciably, never getting anywhere near the levels prior to 1915 and then it proceeded to climb steadily thereafter.

Send a drunken teenager to college with daddy's credit card and tell him to spend all he wants and he will spend all he wants. Our Congress is a drunken teenage off at college.