legalities

[Al Montestruc]

SNIP--of discussion of the attack by one senator on another

The proper responce would be a legal one.

Well put. And the proper response of the slave states to the election
of Lincoln would have been to go to the courts. But that would have
been to risk that the Taney Court, the court of Dred Scott, would have
ruled against secession.

Well their is a problem with that. One has to have a cause to take to
court. In this specific case a legal act of a state government or the
federal government is presumed to be legal until or unless it is
challenged in court by someone, this is explicit in the constituton in
Article IV section 1

" Full Faith and Credit shall be given in each State to the public
Acts, Records, and judicial Proceedings of every other State. And the
Congress may by general Laws prescribe the Manner in which such Acts,
Records and Proceedings shall be proved, and the Effect thereof."

http://www.constitution.org/constit_.htm

See the thing is the the South Carolina legislature passed an act of
secession that was entitled to "full faith and credit" until a
competent court with proper jurisdiction (when a state is a party, and
that state's courts do not dispute the act, the only such court is
SCOTUS) strikes it down.

The somebody to take South Carolina to court could have been Lincoln as
POTUS, and if he had done so, I would be all behind his act as that
would have been legal if he had gotten a ruling from SCOTUS that
secession was unconstitutional, war would have been legal and proper.
Much of my take that he was a tyrant is that he failed to do this
simple act. He asserted all on his own without getting a court to
agree that South Carolina's act was unconstitutional and rebellion. He
as president did not have the constitutional power to make such a call,
only SCOTUS does.

---quote --Article. III

Section. 1.
The judicial Power of the United States shall be vested in one supreme
Court, and in such inferior Courts as the Congress may from time to
time ordain and establish. The Judges, both of the supreme and inferior
Courts, shall hold their Offices during good Behaviour, and shall, at
stated Times, receive for their Services a Compensation, which shall
not be diminished during their Continuance in Office.

Section. 2.
The judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their Authority; - to
all Cases affecting Ambassadors, other public Ministers and Consuls;
- to all Cases of admiralty and maritime Jurisdiction; - to
Controversies to which the United States shall be a Party; - to
Controversies between two or more States; - between a State and
Citizens of another State [Modified by Amendment XI]; - between
Citizens of different States; - between Citizens of the same State
claiming Lands under Grants of different States, and between a State,
or the Citizens thereof, and foreign States, Citizens or Subjects.
-----end quote

This was definitly a controversy between various state governments and
and the federal government -- so I do not see how Lincoln would be
wrong for asking for a ruling on the matter and it would back his
credibility up in making him look more reasonable.

Perhaps he was not so confindent in Taney and Co.

When and on what grounds was South Carolina to goto the supreme court?
She did not contest the election -- she asserted a right to seceed, and
passed such an act. It would be for others to take legal action to stop
her per the constituition. States are free to act as they choose per
the 10th amendment unless SCOTUS says otherwise.

The deal could have been as simple as Lincoln sends the AG with a brief
to SCOTUS, the various states in question say they refuse to accept any
such jurisdiction, SCOTUS asserts Jurisdiction and that's all she
wrote. If SCOTUS rules they still have jurisdiction after the state
passed an act of secession, then secession is illegal.

But they might not so rule.

As, of course, the court *did* rule unanimously against secession and
in favor of an armed response by the United States in the 1863

Not from what I saw. They made rulings that recognized the existance
of a war and later in Texas v White asserted the state legislature to
be in rebellion as a fact of the case -- but did not say why. No
specific unambiguious ruling that unilateral secession was
unconstitutional has been made AFAIK.

[Robert J. Kolker]

Post by Al Montestruc
See the thing is the the South Carolina legislature passed an act of
secession that was entitled to "full faith and credit" until a
competent court with proper jurisdiction (when a state is a party, and
that state's courts do not dispute the act, the only such court is
SCOTUS) strikes it down.

One they seceeded they cannot claim full faith and credit. They are a
foreign country. What they should have done is petition Congress for
permission to seceed first. If granted, then they could seceed legally.

Bob Kolker

[Will]

Post by Al Montestruc
...
Well their is a problem with that. One has to have a cause to take to
court. In this specific case a legal act of a state government or the
federal government is presumed to be legal until or unless it is
challenged in court by someone, this is explicit in the constituton in
Article IV section 1
" Full Faith and Credit shall be given in each State to the public
Acts, Records, and judicial Proceedings of every other State. And the
Congress may by general Laws prescribe the Manner in which such Acts,
Records and Proceedings shall be proved, and the Effect thereof."
See the thing is the the South Carolina legislature passed an act of
secession that was entitled to "full faith and credit" until a
competent court with proper jurisdiction (when a state is a party, and
that state's courts do not dispute the act, the only such court is
SCOTUS) strikes it down.

The full faith and credit clause refers to how one states must view the
acts of another state; it does not address how the federal goverment
must view the actions of a state.

Post by Al Montestruc
The somebody to take South Carolina to court could have been Lincoln as
POTUS, and if he had done so, I would be all behind his act as that
would have been legal if he had gotten a ruling from SCOTUS that
secession was unconstitutional, war would have been legal and proper.
Much of my take that he was a tyrant is that he failed to do this
simple act. He asserted all on his own without getting a court to
agree that South Carolina's act was unconstitutional and rebellion. He
as president did not have the constitutional power to make such a call,
only SCOTUS does.

He did have the statutory authority to make the call that US law was
being obstructed and it was his statutory authority to take steps to
enforce the law.

[Al Montestruc]

Post by Will

Post by Al Montestruc
...
Well their is a problem with that. One has to have a cause to take to
court. In this specific case a legal act of a state government or the
federal government is presumed to be legal until or unless it is
challenged in court by someone, this is explicit in the constituton in
Article IV section 1
" Full Faith and Credit shall be given in each State to the public
Acts, Records, and judicial Proceedings of every other State. And the
Congress may by general Laws prescribe the Manner in which such Acts,
Records and Proceedings shall be proved, and the Effect thereof."
See the thing is the the South Carolina legislature passed an act of
secession that was entitled to "full faith and credit" until a
competent court with proper jurisdiction (when a state is a party, and
that state's courts do not dispute the act, the only such court is
SCOTUS) strikes it down.

The full faith and credit clause refers to how one states must view the
acts of another state; it does not address how the federal goverment
must view the actions of a state.

Fair enough. now where does the president get the power to determine
that an act of a state legislature is unlawful or unconstitutional?
If he ain't got it he ain't got it, SCOTUS would have that power --
nobody else as far as I can see.

Presidential power is discussed in Article II.

http://www.constitution.org/constit_.htm

Post by Will

Post by Al Montestruc
The somebody to take South Carolina to court could have been Lincoln as
POTUS, and if he had done so, I would be all behind his act as that
would have been legal if he had gotten a ruling from SCOTUS that
secession was unconstitutional, war would have been legal and proper.
Much of my take that he was a tyrant is that he failed to do this
simple act. He asserted all on his own without getting a court to
agree that South Carolina's act was unconstitutional and rebellion. He
as president did not have the constitutional power to make such a call,
only SCOTUS does.

He did have the statutory authority to make the call that US law was
being obstructed

What law? No law against secession existed at that time and no SCOTUS
ruling of that time made it unconstitutional. Without such a ruling he
has not a leg to stand on to enforce tax collection or to assert that
south carolina was in the US.

Post by Will
and it was his statutory authority to take steps to
enforce the law.

Like I said -- what law?

[Will]

Post by Al Montestruc
...
Fair enough. now where does the president get the power to determine
that an act of a state legislature is unlawful or unconstitutional?
If he ain't got it he ain't got it, SCOTUS would have that power --
nobody else as far as I can see.

I have not said that he has the power to determine Constitutionality;
nonetheless he can certainly have an opinion on the subject. More
importantly the President does not answer to State acts. A State act
has no effect on the duties or powers of the President. See my further
comments below.

Post by Al Montestruc

Post by Will
He did have the statutory authority to make the call that US law was
being obstructed

What law?

The Militia Act of 1795 directed that if the laws of the United States
were opposed or obstructed by "combinations too powerful to be
suppressed by the ordinary course of judicial proceedings", the
President could call out the militia of the states to suppress the
insurrection and enforce the law.

Post by Al Montestruc
No law against secession existed at that time

I never said there was one.

Post by Al Montestruc
... and no SCOTUS
ruling of that time made it unconstitutional.

Not directly, but I think its past rulings indirectly addressed this.

Post by Al Montestruc
... Without such a ruling he
has not a leg to stand on to enforce tax collection or to assert that
south carolina was in the US.

The truth is exactly the opposite! His ONLY recourse was to assume
the States are still in the US and that he must continue to enforce the
law. This was his sworn duty.

Did US law and treaties state that South Carolina was part of the US?
Yes.
Did US law direct that revenue be collected at the Port of Charleston?
Yes.
Therefore, the President was bound by the Constitution to abide by and
enforce those laws. (Article II, Section 2 -- the oath of office; and
Section 3 -- "he shall take Care that the Laws be faithfully
executed".)

Thus President Buchanan wrote: "the Executive has no authority to
decide what shall be the relations between the Federal Government and
South Carolina. He has been invested with no such discretion. He
possesses no power to change the relations heretofore existing between
them, much less to acknowledge the independence of that State."

And Lincoln wrote: "The Chief Magistrate derives all his authority from
the people, and they have referred none upon him to fix terms for the
separation of the States. The people themselves can do this if also
they choose, but the Executive as such has nothing to do with it. His
duty is to administer the present Government as it came to his hands
and to transmit it unimpaired by him to his successor."

[Al Montestruc]

Post by Will

Post by Al Montestruc
...
Fair enough. now where does the president get the power to determine
that an act of a state legislature is unlawful or unconstitutional?
If he ain't got it he ain't got it, SCOTUS would have that power --
nobody else as far as I can see.

I have not said that he has the power to determine Constitutionality;
nonetheless he can certainly have an opinion on the subject. More
importantly the President does not answer to State acts. A State act
has no effect on the duties or powers of the President. See my further
comments below.

Post by Al Montestruc

Post by Will
He did have the statutory authority to make the call that US law was
being obstructed

What law?

The Militia Act of 1795 directed that if the laws of the United States
were opposed or obstructed by "combinations too powerful to be
suppressed by the ordinary course of judicial proceedings",

Where was this? not in the USA for sure.

Post by Will
the
President could call out the militia of the states to suppress the
insurrection and enforce the law.

Post by Al Montestruc
No law against secession existed at that time

I never said there was one.

No law against it means no law to enforce.

Post by Will

Post by Al Montestruc
... and no SCOTUS
ruling of that time made it unconstitutional.

Not directly, but I think its past rulings indirectly addressed this.

This was not nullification, secession was a whole new animal.
Nullification means violation of the supremacy clause pure and simple.
It does not follow that the supremacy clause should apply to a seperate
nation no longer part of the USA, and no longer under it's protection.

Post by Will

Post by Al Montestruc
... Without such a ruling he
has not a leg to stand on to enforce tax collection or to assert that
south carolina was in the US.

The truth is exactly the opposite! His ONLY recourse was to assume
the States are still in the US

I do not see that as being valid. President Buchanan did not either,
while he did agree with you that secession was not constitutional, he
held that their was nothing that the federal government could legaly do
to stop it.

Post by Will
and that he must continue to enforce the
law. This was his sworn duty.
Did US law and treaties state that South Carolina was part of the US?
Yes.

The constitution stated that South Carolina was part of the USA because
she ratified that document, no other reason and did not explicitly
state she could not back out of the deal.

Post by Will
Did US law direct that revenue be collected at the Port of Charleston?
Yes.
Therefore, the President was bound by the Constitution to abide by and
enforce those laws. (Article II, Section 2 -- the oath of office; and
Section 3 -- "he shall take Care that the Laws be faithfully
executed".)
Thus President Buchanan wrote: "the Executive has no authority to
decide what shall be the relations between the Federal Government and
South Carolina.

Which is a correct view.

Post by Will
He has been invested with no such discretion. He
possesses no power to change the relations heretofore existing between
them, much less to acknowledge the independence of that State."
And Lincoln wrote: "The Chief Magistrate

which he was not

Post by Will
derives all his authority from
the people, and they have referred none upon him to fix terms for the
separation of the States.

that does not follow the people deligated authority to the government
according to the constitution.

Post by Will
The people themselves can do this if also
they choose,

The people of the seceeding states did so, see the landslide elections
for secession in several states. Note also that the people of each
state seperately chose in conventions whether or not to join the union,
which is in the plane text of the constitution.

Post by Will
but the Executive as such has nothing to do with it.

Right in priniciple, that would mean also not putting up roadblocks.

Post by Will
His
duty is to administer the present Government as it came to his hands
and to transmit it unimpaired by him to his successor."

He did not.

[Will]

Post by Al Montestruc

Post by Will
The Militia Act of 1795 directed that if the laws of the United States
were opposed or obstructed by "combinations too powerful to be
suppressed by the ordinary course of judicial proceedings",

Where was this? not in the USA for sure.

For sure that in April, 1861 the laws of the US were being oppossed in
a number of the states.

Post by Al Montestruc

Post by Will
I never said there was one.

No law against it means no law to enforce.

I dont follow what you mean. The laws that Lincoln needed to enforce
were all the existing federal laws.

Post by Al Montestruc
This was not nullification, secession was a whole new animal.
Nullification means violation of the supremacy clause pure and simple.
It does not follow that the supremacy clause should apply to a seperate
nation no longer part of the USA, and no longer under it's protection.

I never claimed it would apply to a separate nation. But the states
that claimed to have seceeded were not a separate nation. Just like
with nullification, their laws of secession were without effect
becuase they violated the supremacy clause. And so those states
continued to be part of the USA.

Post by Al Montestruc

Post by Will

Post by Al Montestruc
... Without such a ruling he
has not a leg to stand on to enforce tax collection or to assert that
south carolina was in the US.

The truth is exactly the opposite! His ONLY recourse was to assume
the States are still in the US

I do not see that as being valid. President Buchanan did not either,

Buchanan did see this as valid. I quoted as such and you even called
it a correct view. Also read his special message to Congress of
January 8th 1861 for his own explantion of why it was correct to use
force against the rebels.

Post by Al Montestruc
The constitution stated that South Carolina was part of the USA because
she ratified that document, no other reason and did not explicitly
state she could not back out of the deal.

So? Again, did US law/treaties state that South Carolina was part of
the US? Yes.

Post by Al Montestruc

Post by Will
Thus President Buchanan wrote: "the Executive has no authority to
decide what shall be the relations between the Federal Government and
South Carolina.

Which is a correct view.

Then you agree with me?!

Post by Al Montestruc

Post by Will
He has been invested with no such discretion. He
possesses no power to change the relations heretofore existing between
them, much less to acknowledge the independence of that State."
And Lincoln wrote: "The Chief Magistrate

which he was not

Its the same veiw. So its odd you have a different answer.

Post by Al Montestruc

Post by Will
derives all his authority from
the people, and they have referred none upon him to fix terms for the
separation of the States.

that does not follow the people deligated authority to the government
according to the constitution.

That is what the Constitution says: 'We the poeple...."

Post by Al Montestruc

Post by Will
The people themselves can do this if also
they choose,

The people of the seceeding states did so, see the landslide elections
for secession in several states.

Huh? In none of those elections did they confer any new authority on
the President of the USA.

Post by Al Montestruc
.... Note also that the people of each
state seperately chose in conventions whether or not to join the union,
which is in the plane text of the constitution.

So? What is the point here?

Post by Al Montestruc

Post by Will
His
duty is to administer the present Government as it came to his hands
and to transmit it unimpaired by him to his successor."

He did not.

True.

[Al Montestruc]

Post by Will

Post by Al Montestruc

Post by Will
The Militia Act of 1795 directed that if the laws of the United States
were opposed or obstructed by "combinations too powerful to be
suppressed by the ordinary course of judicial proceedings",

Where was this? not in the USA for sure.

For sure that in April, 1861 the laws of the US were being oppossed in
a number of the states.

If you are thinking of South Carolina for example, you are much
mistaken. They had seceeded and federal laws no longer applied, and
Mr. Lincoln failed to get a court ruling saying otherwise.

Post by Will

Post by Al Montestruc

Post by Will
I never said there was one.

No law against it means no law to enforce.

I dont follow what you mean. The laws that Lincoln needed to enforce
were all the existing federal laws.

Which apply inside the USA, the states in question were outside federal
jurisdiction.

Post by Will

Post by Al Montestruc
This was not nullification, secession was a whole new animal.
Nullification means violation of the supremacy clause pure and simple.
It does not follow that the supremacy clause should apply to a seperate
nation no longer part of the USA, and no longer under it's protection.

I never claimed it would apply to a separate nation. But the states
that claimed to have seceeded were not a separate nation. Just like
with nullification, their laws of secession were without effect
becuase they violated the supremacy clause.

No secession did not violate the supremacy clause as the constitution
does say that states are allowed to do as not explicitly forbidden see
Amendment X, the supremacy clause can be read in such a way that it is
supreme over state law so long as the state stays in the union, if it
is not read that way, then it violates ratification by at least two
states that explicitly stated in their ratification that they could
back out.

http://www.usconstitution.net/rat_va.html

---quote----
WE the Delegates of the people of Virginia, duly elected in pursuance
of a recommendation from the General Assembly, and now met in
Convention, having fully and freely investigated and discussed the
proceedings of the Federal Convention, and being prepared as well as
the most mature deliberation hath enabled us, to decide thereon, DO in
the name and in behalf of the people of Virginia, declare and make
known that the powers granted under the Constitution, being derived
from the people of the United States ***may be resumed by them
whensoever the same shall be perverted to their injury or
oppression****, and that every power not granted thereby remains with
them and at their will: that therefore no right of any denomination,
can be cancelled, abridged, restrained or modified, by the Congress, by
the Senate or House of Representatives acting in any capacity, by the
President or any department or officer of the United States, except in
those instances in which power is given by the Constitution for those
purposes: and that among other essential rights, the liberty of
conscience and of the press cannot be cancelled, abridged, restrained
or modified by any authority of the United States.

--------end quote

If the ratification of Viginia is to be taken as valid, then the
supremacy clause cannot be held to forbid secession as the ratification
of Virginia explicitly states that all powers given to the federal
government by the people of Virginia "may be resumed by them whensoever
the same shall be perverted to their injury or oppression".

In the judgement of whom? Obviously the people of Virginia, note the
referendum to seceed passed by a landslide.

http://www.usconstitution.net/rat_ny.html

New York's ratification says much the same.

Post by Will
And so those states
continued to be part of the USA.

Post by Al Montestruc

Post by Will

Post by Al Montestruc
... Without such a ruling he
has not a leg to stand on to enforce tax collection or to assert that
south carolina was in the US.

The truth is exactly the opposite! His ONLY recourse was to assume
the States are still in the US

I do not see that as being valid. President Buchanan did not either,

Buchanan did see this as valid. I quoted as such and you even called
it a correct view.

He said secesssion was unconstitutional, not that it could not happen.
He also said that the federal government had no legal power to stop
them and that is basically admitting that they can do it.

Post by Will
Also read his special message to Congress of
January 8th 1861 for his own explantion of why it was correct to use
force against the rebels.

Post by Al Montestruc
The constitution stated that South Carolina was part of the USA because
she ratified that document, no other reason and did not explicitly
state she could not back out of the deal.

So? Again, did US law/treaties state that South Carolina was part of
the US? Yes.

Deligated power can be undeligated.

Post by Will

Post by Al Montestruc

Post by Will
Thus President Buchanan wrote: "the Executive has no authority to
decide what shall be the relations between the Federal Government and
South Carolina.

Which is a correct view.

Then you agree with me?!

Only in that the president had no authority to dictate terms in this
matter, this was a matter where the people of each state were supreme.

Post by Will

Post by Al Montestruc

Post by Will
He has been invested with no such discretion. He
possesses no power to change the relations heretofore existing between
them, much less to acknowledge the independence of that State."
And Lincoln wrote: "The Chief Magistrate

which he was not

Its the same veiw.

No it is not. The President of the United States is in no way a
Magistrate and has absolutly no authority as a magistrate. He is an
executive, not a judge.

http://dictionary.reference.com/search?q=magistrate

Main Entry: mag·is·trate
Pronunciation: 'ma-j&-"strAt, -str&t
Function: noun
Etymology: Latin magistratus magistracy, magistrate, from magistr-
magister master, political superior
1 : a civil or judicial official vested with limited judicial powers <a
family support magistrate> <a traffic magistrate>
2 a : a municipal, state, or federal judicial officer commonly
authorized to issue warrants, hear minor cases, and conduct preliminary
or pretrial hearings called also magistrate judge b : an official (as a
judge) authorized to perform the role or function of a magistrate
<magistrate means an officer having power to issue a warrant for the
arrest of a person charged with a public offense -Arizona Revised
Statutes>

One of the basic concepts of the Federal Government was seperation of
powers to prevent tyranny and one important part of that seperation was
to seperate executive power from judicial power. Lincoln asserting he
was "The Chief Magistrate" is a flat out lie, Chief Justice Taney was
the Chief Magistrate of the USA, and Lincoln was not a magistrate at
all, he was president with specific and very limited legal authority.
His acts in office exceeding that authority --which were numerous--
were criminal and tyrannical.

Post by Will
So its odd you have a different answer.

I would appreciate it if you would better educate yourself as to the
basic theory of American government so that we can discuss this
intelligently, his statement that the president is chief magistrate is
a lie and an absurd one.

Post by Will

Post by Al Montestruc

Post by Will
derives all his authority from
the people, and they have referred none upon him to fix terms for the
separation of the States.

that does not follow the people deligated authority to the government
according to the constitution.

That is what the Constitution says: 'We the poeple...."

Deligated power can be undeligated real fast. If you have your spouse
or parent's "power of attourny" they can nullify it in a new york
second if they want to. The constitution explicitly states that all
federal power is deligated to the feds by the people and states, it was
never ceeded. The difference in law is enormous. Thus the people of
the states have the power to seperate from the union at their
discression.

Post by Will

Post by Al Montestruc

Post by Will
The people themselves can do this if also
they choose,

The people of the seceeding states did so, see the landslide elections
for secession in several states.

Huh? In none of those elections did they confer any new authority on
the President of the USA.

No they took all his power over their states away. Deligated power can
be undeligated.

Post by Will

Post by Al Montestruc
.... Note also that the people of each
state seperately chose in conventions whether or not to join the union,
which is in the plane text of the constitution.

So? What is the point here?

If they seperatly choose to ratify they can seperatly choose to
unratify as the constitution does not say they cannot, and does say all
powers not deligated to the federal government are retained by the
people or the states.


---------snip

[Robert J. Kolker]

Post by Al Montestruc
If you are thinking of South Carolina for example, you are much
mistaken. They had seceeded and federal laws no longer applied, and
Mr. Lincoln failed to get a court ruling saying otherwise.

Secession is illegal as the outcome of the war proved. Any state or
municipality that tries it will find out how non-legal it is.

Bob Kolker

[Dave Smith]

Bob brings up an interesting point.

If secession were so simple, and so legal, how come someone hasn't
tried to peacefully secede since the Civil War?

Certainly the Federal Government has ticked off someone willing to go
their own separate way ...

Dave

[Wood]

Daniel Faber in "Lincoln's Constitution" explains that in some detail.
While he has to depend on Supreme Court rulings as recent as Bush 41 to
justify Lincoln's actions, he certainly showed why our present
Constitution as interpreted by many rulings of the Supreme Court has
supported the firm walls around our Federal state that Lincoln built
under the original Constitutional roof.

[Will]

Post by Al Montestruc
...

Post by Will
For sure that in April, 1861 the laws of the US were being oppossed in
a number of the states.

If you are thinking of South Carolina for example, you are much
mistaken. They had seceeded and federal laws no longer applied, and
Mr. Lincoln failed to get a court ruling saying otherwise.

Earlier I asked a simple question: Did US law direct that revenue be
collected at the Port of Charleston? I answered it as myself -- yes.
As such, that a US law was being obstructed.

Now as to the question of whether that law actually applied to them,
you base that contention on a faulty theory that secession was legal.,
Since it was illegal, the laws still applied to them.

Regarding Lincoln and a court ruling, I have pointed out that the
President had no basis to seek a court ruling on the relationship of a
state to the US.

Post by Al Montestruc
Which apply inside the USA, the states in question were outside federal
jurisdiction.

Federal jurisdiction is deifned by federal laws. Those had not
changed.

Post by Al Montestruc
No secession did not violate the supremacy clause as the constitution
does say that states are allowed to do as not explicitly forbidden see
Amendment X

The supremacy clause forbids secession.

Post by Al Montestruc
,... if it
is not read that way, then it violates ratification by at least two
states that explicitly stated in their ratification that they could
back out.

The Supremacy Clause states it is supreme over state actions, such as
those ratifications.

Post by Al Montestruc
Deligated power can be undeligated.

Not necessarily in a legally sanctioned manner.

Post by Al Montestruc
No it is not. The President of the United States is in no way a
Magistrate and has absolutly no authority as a magistrate. He is an
executive, not a judge.

Chief Magistrate is a term which has commonly been used to refer to the
President. It can be found in the Federalist papers, in the
correspodnence of Jefferson, in speeches by Presidents Jackson,
Harrison, Polk, etc etc. Flipping open my Webster's dicitonary I find
that the first definition of magistrate is "a cviil officer empowered
tp administer and enforce the law: the President of the United States
is sometimes called the first (or chief) magistrate."
Merriam-Webster Online Dictionary states that magistrate is "an
official entrusted with administration of the laws"

Post by Al Montestruc
I would appreciate it if you would better educate yourself as to the
basic theory of American government so that we can discuss this
intelligently, his statement that the president is chief magistrate is
a lie and an absurd one.

It was neither a lie nor absurd. Educate yourself since it is you who
appears to need it.

[Alfred Montestruc]

Post by Will
...

Post by Al Montestruc

Post by Will
For sure that in April, 1861 the laws of the US were being oppossed in
a number of the states.

If you are thinking of South Carolina for example, you are much
mistaken. They had seceded and federal laws no longer applied, and
Mr. Lincoln failed to get a court ruling saying otherwise.

Earlier I asked a simple question: Did US law direct that revenue be
collected at the Port of Charleston? I answered it as myself -- yes.

Incorrectly. US tax codes only apply in US jurisdiction and where
other nations recognize them by treaty for various purposes like
extradition.

Post by Will
As such, that a US law was being obstructed.

The question of jurisdiction comes first and you have not addressed it
other than to assert w/o foundation that a state cannot secede.

Post by Will
Now as to the question of whether that law actually applied to them,
you base that contention on a faulty theory that secession was legal.

Assertion that some thing is wrong or faulty is not proof that it is
wrong or faulty. I have shown in my previous post on this thread that
one can interpret the supremacy clause to allow secession, and that one
must interpret it that way if it is consistent with the ratification of
that document (which is where it gets it's authority) by Virginia and
New York.

Post by Will
Regarding Lincoln and a court ruling, I have pointed out that the
President had no basis to seek a court ruling on the relationship of a
state to the US.

If he wishes to assert publicly that a law passed by the state
legislature is unconstitutional, and then act on that statement as
president, then he does have cause, and the need, to take the state to
court.

Post by Will

Post by Al Montestruc
Which apply inside the USA, the states in question were outside federal
jurisdiction.

Federal jurisdiction is defined by federal laws.

No sir federal jurisdiction is defined by the constitution and the acts
of ratification of that document by the states, and only then by
federal law that is consistent with the constitution and ratification
of that document.

Post by Will
Those had not
changed.

Post by Al Montestruc
No secession did not violate the supremacy clause as the constitution
does say that states are allowed to do as not explicitly forbidden see
Amendment X

,... if it
is not read that way, then it violates ratification by at least two
states that explicitly stated in their ratification that they could
back out.

The Supremacy Clause states it is supreme over state actions, such as
those ratifications.

Sounds impossible to me. The constitution was given it's legal
authority by those acts.

Post by Will

Post by Al Montestruc
Delegated power can be un-delegated.

Not necessarily in a legally sanctioned manner.

Delegated authority can be resumed by the original owner of that power
or authority at his (the owner's) pleasure without specific
agreement otherwise. No such specific agreement existed. The
supremacy clause can be interpreted otherwise, and must be so
interpreted to be consistent with the articles of ratification.

http://dictionary.reference.com/search?r=2&q=delegate

del·e·gate ( P ) Pronunciation Key (dl-gt, -gt)
n.
A person authorized to act as representative for another; a deputy or
an agent.
A representative to a conference or convention.
A member of a House of Delegates, the lower house of the Maryland,
Virginia, or West Virginia legislature.
An elected or appointed representative of a U.S. territory in the House
of Representatives who is entitled to speak but not vote.

Post by Will

Post by Al Montestruc
No it is not. The President of the United States is in no way a
Magistrate and has absolutely no authority as a magistrate. He is an
executive, not a judge.

Chief Magistrate is a term which has commonly been used to refer to the
President. It can be found in the Federalist papers,

--snip

Point taken but still the President of the United States is not a judge
and has no judicial authority to decide matters of law according to the
constitution.

[scribe7716]

Post by Al Montestruc
No secession did not violate the supremacy clause as the constitution
does say that states are allowed to do as not explicitly forbidden see
Amendment X...

Here is the 10th:

"The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people."

Find the word "explicity" or its equivalent in there.

See Jimmy Madison as to why its not in there and the doctorine of
implied powers.

[H***@comcast.net]

The flaw in the argument about the legality of secession is the
assumption that secession was ipso facto legal. Now there are - and
were - lots of good arguments alleging the legality of secession. But
there were also lots of good (note, I don't say "better")
arguments against the legality of secession.

And, as it turned out, the latter also the greater will to reject
secession.

Mr. Lincoln, in his First Inaugural, gave his version of the argument:


"I hold, that in contemplation of universal law, and of the
Constitution, the Union of these States is perpetual. Perpetuity is
implied, if not expressed, in the fundamental law of all national
governments. It is safe to assert that no government proper, ever had a
provision in its organic law for its own termination. Continue to
execute all the express provisions of our national Constitution, and
the Union will endure forever-it being impossible to destroy it,
except by some action not provided for in the instrument itself.

"Again, if the United States be not a government proper, but an
association of States in the nature of contract merely, can it, as a
contract, be peaceably unmade, by less than all the parties who made
it? One party to a contract may violate it-break it, so to speak; but
does it not require all to lawfully rescind it?

"Descending from these general principles, we find the proposition
that, in legal contemplation, the Union is perpetual, confirmed by the
history of the Union itself. The Union is much older than the
Constitution. It was formed in fact, by the Articles of Association in
1774. It was matured and continued by the Declaration of Independence
in 1776. It was further matured and the faith of all the then thirteen
States expressly plighted and engaged that it should be perpetual, by
the Articles of Confederation in 1778. And finally, in 1787, one of the
declared objects for ordaining and establishing the Constitution, was
"to form a more perfect union ."

"But if destruction of the Union, by one, or by a part only, of the
States, be lawfully possible, the Union is less perfect than before the
Constitution, having lost the vital element of perpetuity.

"It follows from these views that 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.

"I therefore consider that, in view of the Constitution and the laws,
the Union is unbroken; and, to the extent of my ability, I shall take
care, as the Constitution itself expressly enjoins upon me, that the
laws of the Union be faithfully executed in all the States. Doing this
I deem to be only a simple duty on my part; and I shall perform it, so
far as practicable, unless my rightful masters, the American people,
shall withhold the requisite means, or, in some authoritative manner,
direct the contrary. I trust this will not be regarded as a menace,
but only as the declared purpose of the Union that it will
constitutionally defend, and maintain itself."

Take care,

Bob

Judy and Bob Huddleston
10643 Sperry Street
Northglenn, CO 80234-3612
303.451.6376 ***@comcast.net

"Don't argue with someone who claims the earth is flat. You haven't
given it a second thought, whereas he has spent 20 years thinking about
and obsessing over why it is flat."

[Alfred Montestruc]

Post by scribe7716

Post by Al Montestruc
No secession did not violate the supremacy clause as the constitution
does say that states are allowed to do as not explicitly forbidden see
Amendment X...

"The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people."
Find the word "explicity" or its equivalent in there.

"reserved"

The word reserved in the context of the 10th amendment does not mean
"if the feds feel like letting the states or people do X it is allowed,
this time", it means that ALL powers not deligated to the Feds, are
reserved to the people or states and that powers not deligated to the
Feds and forbidden to the states are reserved to the people.

---snip

[Robert J. Kolker]

Post by Alfred Montestruc
"reserved"
The word reserved in the context of the 10th amendment does not mean
"if the feds feel like letting the states or people do X it is allowed,
this time", it means that ALL powers not deligated to the Feds, are
reserved to the people or states and that powers not deligated to the
Feds and forbidden to the states are reserved to the people.

You really have to learn not to take these old documents too seriosly.

Power comes from the barrel of a gun --- Chairman Mao.

Bob Kolker

[scribe7716]

Post by Alfred Montestruc

Post by scribe7716

Post by Al Montestruc
No secession did not violate the supremacy clause as the constitution
does say that states are allowed to do as not explicitly forbidden see
Amendment X...

"The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people."
Find the word "explicity" or its equivalent in there.

"reserved"
The word reserved in the context of the 10th amendment does not mean
"if the feds feel like letting the states or people do X it is allowed,
this time", it means that ALL powers not deligated to the Feds, are
reserved to the people or states and that powers not deligated to the
Feds and forbidden to the states are reserved to the people.

James Madison, the father of the Bill of Rights, disagrres with you,
the Congress that approved the Bill of Rights, the states that ratified
the Bill of Rights, and the Supremes disagree with you. Hell, even the
dictionary disagrees with you.

Reserved means set aside for, and in the context of the 10th is a
nullity that says in essence if it ain't taken you still got it.
"Reserved" gives no parameters on what is or si not taken, and debate
during passage of what would be the 10th Amendment and Supreme Court
rulings since make it clear that the federal government has broad
implied powers beyond those expressly spelled out in the Consitution.

During debate on what would become the 10th Amendment, Rep. Thomas T.
Tucker of (where else) south Carolina moved to insert the word
"expressly" into the amendment. He would have 10th read "The powers
not EXPRESSLY delegated by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively [the words "or to
the
people" were added later in deliberations of the amendment]."

Such a limitation on federal powers was, of course, one of the great
weakness of the nation under the Articles of Confederation, and a
repeat would
respresent a massive change in the Constitution as written and
ratified. James Madison wouldn't let that
happen.

He argued, "It is impossible to confine a Government to the exercise of
express
powers; there must necessarily be admitted powers by implication,
unless the
Constitution descend to recount every minutiae."

The House of Representatives held with Madison, as did the Senate and
the
state's ratifying the 10th. The 10th thus came to us clearly stamped
with an
original intent of implied powers.

Justice Joseph Story wrote, "It is plain, therefore, that it could not
have
been the intention of the framers of this amendment [the 10th] to give
it
effect, as an abridgement of any powers granted under the Constitution,
whether
they are express or implied, direct or incidental."

[Alfred Montestruc]

Post by scribe7716

Post by Alfred Montestruc

Post by scribe7716

Post by Al Montestruc
No secession did not violate the supremacy clause as the constitution
does say that states are allowed to do as not explicitly forbidden see
Amendment X...

"The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people."
Find the word "explicity" or its equivalent in there.

"reserved"
The word reserved in the context of the 10th amendment does not mean
"if the feds feel like letting the states or people do X it is allowed,
this time", it means that ALL powers not deligated to the Feds, are
reserved to the people or states and that powers not deligated to the
Feds and forbidden to the states are reserved to the people.

James Madison, the father of the Bill of Rights, disagrres with you,

He more than anyone else wrote the constitution, and he was a
federalist. It is a basic principle of law that where one party to a
contract or other binding legal document (in this case the Federalists)
writes the contract, and the contract or other binding legal document
is vague on some point, and this results in a dispute, that the
vagueness is resolved *against* the writer of the contract. Ergo that
James Madison who wrote it wanted it to be interpreted that way, and
reasonable legal minds differed as to the meaning, then it is vague and
should be interpreted against him.

Post by scribe7716
the Congress that approved the Bill of Rights,

Congress did not approve the Bill of Rights or any amendements, they
propose them. The state legislatures approve them by ratification.

-------------Quote US Constitution 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.
--------------end quote------------

Post by scribe7716
the states that ratified
the Bill of Rights, and the Supremes disagree with you.

Oh I can think of 11 states at least that did not agree on the issue of
secession. And the question has never been put to SCOTUS directly on a
legal case other than after force major had decided the issue. SCOTUS
was not going to overrule the decision of the battlefield. In the case
of Texas v White SCOTUS did not rule on the matter, it in effect just
accepted the decision of the battlefield.

Post by scribe7716
Hell, even the
dictionary disagrees with you.

The editors of the dictionary you refer to are wrong.

Post by scribe7716
Reserved means set aside for, and in the context of the 10th is a
nullity that says in essence if it ain't taken you still got it.
"Reserved" gives no parameters on what is or si not taken, and debate
during passage of what would be the 10th Amendment and Supreme Court
rulings since make it clear that the federal government has broad
implied powers beyond those expressly spelled out in the Consitution.
During debate on what would become the 10th Amendment, Rep. Thomas T.
Tucker of (where else) south Carolina moved to insert the word
"expressly" into the amendment. He would have 10th read "The powers
not EXPRESSLY delegated by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively [the words "or to
the
people" were added later in deliberations of the amendment]."
Such a limitation on federal powers was, of course, one of the great
weakness of the nation under the Articles of Confederation, and a
repeat would
respresent a massive change in the Constitution as written and
ratified. James Madison wouldn't let that
happen.

Vague -- he wanted wiggle room to get more power for the federal
government than was being originally agreed to, and so to be
interpreted against him.

Post by scribe7716
He argued, "It is impossible to confine a Government to the exercise of
express
powers; there must necessarily be admitted powers by implication,
unless the
Constitution descend to recount every minutiae."

He is full of it. It is quite possible, he just does not want to be so
restricted ---toughski..


snip

[Gary Charbonneau]

Post by Alfred Montestruc
The word reserved in the context of the 10th amendment does not mean
"if the feds feel like letting the states or people do X it is allowed,
this time", it means that ALL powers not deligated to the Feds, are
reserved to the people or states and that powers not deligated to the
Feds and forbidden to the states are reserved to the people.

It is true that all powers not delegated to the United States by the
Constitution, nor forbidden to the states therein, are reserved to the
states or to the people. It is also true, however, that certain powers
most definitely are delegated to the United States. The United States
does not need to ask the permission of any state to exercise those
delegated powers, not even within the boundaries of that state.

No state may lawfully deny the United States the right to exercise its
delegated powers within the boundaries of that state, and no state may
lawfully exercise any of those powers that are forbidden by the
Constitution to the states. Yet the argument that secession is
constitutional implies quite the opposite -- that a state may indeed
lawfully deny the United States the right to exercise its delegated
powers within that state, and a state may indeed lawfully exercise
those powers that are forbidden by the Constitution to the states. It
may do those things by enacting a certain type of ordinance, that
ordinance being an express or implied assertion that the state and its
people are henceforth not subject to the authority of the Constitution.

Such is the paradoxical nature of this argument that it entails that
that it would be inherently impossible for the Constitution to forbid
secession, regardless of what it says or might say. It entails that
the state and its people are no longer subject to the legal authority
of the Constitution the instant the state adopts a certain type of
ordinance enacted by a certain kind of political body, and that the
constitutionality of that ordinance is inherently exempt from legal
scrutiny (except, perhaps, scrutiny under the state's own constitution
and laws).

An underlying premise of this argument, sometimes stated, sometimes
not, is that the Constitution in no way impaired or impairs the
absolute sovereignty of the people of the individual states. But this,
again, is simply another way of saying that the people of an individual
state may, indeed, lawfully refuse to permit the United States to
exercise one, some, or all of the powers delegated to it by the
Constitution, and may lawfully authorize the state to exercise one,
some, or all of powers denied to the states by the Constitution.

Essentially, the argument presumes that the Constitution is not a law
(certainly not the supreme law of the land, binding on the states and
on their people), but rather a treaty among so many separate sovereign
and independent nations. It presumes that the United Staates is not a
nation, but rather, an international organization -- a "league."
Consequently, any violation of the Constitution would not be a
violation of law, with a remedy in law, but a treaty violation, with no
possible remedy in law because there is no law that applies.

[Alfred Montestruc]

Post by Gary Charbonneau

Post by Alfred Montestruc
The word reserved in the context of the 10th amendment does not mean
"if the feds feel like letting the states or people do X it is allowed,
this time", it means that ALL powers not deligated to the Feds, are
reserved to the people or states and that powers not deligated to the
Feds and forbidden to the states are reserved to the people.

It is true that all powers not delegated to the United States by the
Constitution, nor forbidden to the states therein, are reserved to the
states or to the people. It is also true, however, that certain powers
most definitely are delegated to the United States. The United States
does not need to ask the permission of any state to exercise those
delegated powers, not even within the boundaries of that state.

Until or unless the people of that state undeligate those powers.

If you are going to assert that the constitution forbids such
undeligation, please look at my arguments that supremacy clause cannot
reasonably be interpreted that way and have it be consistent with the
articles of ratification.

Post by Gary Charbonneau
No state may lawfully deny the United States the right to exercise its
delegated powers within the boundaries of that state, and no state may
lawfully exercise any of those powers that are forbidden by the
Constitution to the states. Yet the argument that secession is
constitutional implies quite the opposite -- that a state may indeed
lawfully deny the United States the right to exercise its delegated
powers within that state, and a state may indeed lawfully exercise
those powers that are forbidden by the Constitution to the states.

But not and stay in the Union. "The Union way or the highway" as it
were, but that should be the choice of the people of that state.

Post by Gary Charbonneau
It
may do those things by enacting a certain type of ordinance, that
ordinance being an express or implied assertion that the state and its
people are henceforth not subject to the authority of the Constitution.
Such is the paradoxical nature of this argument that it entails that
that it would be inherently impossible for the Constitution to forbid
secession, regardless of what it says or might say. It entails that
the state and its people are no longer subject to the legal authority
of the Constitution the instant the state adopts a certain type of
ordinance enacted by a certain kind of political body, and that the
constitutionality of that ordinance is inherently exempt from legal
scrutiny (except, perhaps, scrutiny under the state's own constitution
and laws).
An underlying premise of this argument, sometimes stated, sometimes
not, is that the Constitution in no way impaired or impairs the
absolute sovereignty of the people of the individual states. But this,
again, is simply another way of saying that the people of an individual
state may, indeed, lawfully refuse to permit the United States to
exercise one, some, or all of the powers delegated to it by the
Constitution, and may lawfully authorize the state to exercise one,
some, or all of powers denied to the states by the Constitution.
Essentially, the argument presumes that the Constitution is not a law
(certainly not the supreme law of the land, binding on the states and
on their people), but rather a treaty among so many separate sovereign
and independent nations. It presumes that the United Staates is not a
nation, but rather, an international organization -- a "league."
Consequently, any violation of the Constitution would not be a
violation of law, with a remedy in law, but a treaty violation, with no
possible remedy in law because there is no law that applies.

Treaties are legal and have the force of law, people can, and have been
hanged or put in prison for violating them.

[r***@pdq.net]

Post by Alfred Montestruc

Post by Gary Charbonneau

Post by Alfred Montestruc
The word reserved in the context of the 10th amendment does not mean
"if the feds feel like letting the states or people do X it is allowed,
this time", it means that ALL powers not deligated to the Feds, are
reserved to the people or states and that powers not deligated to the
Feds and forbidden to the states are reserved to the people.

It is true that all powers not delegated to the United States by the
Constitution, nor forbidden to the states therein, are reserved to the
states or to the people. It is also true, however, that certain powers
most definitely are delegated to the United States. The United States
does not need to ask the permission of any state to exercise those
delegated powers, not even within the boundaries of that state.

Until or unless the people of that state undeligate those powers.

The core dispute here, it seems to me, revolves around the question
of precisely what was created in 1789 by the enactment of the US
constitution. Was it understood to be merely a more centrally organized
confederation of sovereign states or the creation of a new sovereign
nation?
The modern concept of nationhood was well understood by then. Since
the treaty of Westphallia (1648) , educated folks knew very well what
national sovereignity entailed. One of its main features was the right
and the duty to control the land and its borders. Nations, after all,
are largely defined by borders. They may also be about ideals, etc. but
ideals do not necessarily have land and borders whereas nations
absolutely do.
If the new American entity was indeed a nation state as it was
understood in those days then any seperatists effort was rebellion,
period. There was no possibility of such being legal or constitutinal,
at least not in the realm of good faith argument. (By good faith, I
mean that arguments are limited to points of view that the presenter
actually believes to be valid and would accept if offered back at
them).
Was the USA in 1860 a Nation? It sure acted like one. The whole
world recognized it as such. It had made treaties and declared war
exactly in the diplomatic idiom of the time as appropriate for a
Nation. The southern states had treated the USA like a Nation of which
they were a part.
Of course, the southerners wanted to speak of it as if it were
merely something created by a form of civil contract that could be
dissolved by civil means. But that line of thinking is just made up out
of thin air. There are no entities with sovereignity above recognized
nations. There are no courts or enforcers which exist or or competent
to resolve disputes. If they felt as if they were being treated
unfairly by the Federal Government (and who has not?) they could leave;
emigrate. But to attempt to alienate a portion of national territory
inevitably collides head on with the core definition of nationhood.
Nations can agree to give up territory and retain legitimacy. This
happens all of the time. But the second they renounce their right to
fight to keep their territory they have stoped being a nation at all.
Buccannons nonesensical difference splitting weasal talk
notwithstanding. Responsible officials do not have the luxury of
building policy on contradictions - at least not for very long.

Post by Alfred Montestruc
If you are going to assert that the constitution forbids such
undeligation, please look at my arguments that supremacy clause cannot
reasonably be interpreted that way and have it be consistent with the
articles of ratification.

Post by Gary Charbonneau
No state may lawfully deny the United States the right to exercise its
delegated powers within the boundaries of that state, and no state may
lawfully exercise any of those powers that are forbidden by the
Constitution to the states. Yet the argument that secession is
constitutional implies quite the opposite -- that a state may indeed
lawfully deny the United States the right to exercise its delegated
powers within that state, and a state may indeed lawfully exercise
those powers that are forbidden by the Constitution to the states.

But not and stay in the Union. "The Union way or the highway" as it
were, but that should be the choice of the people of that state.

Post by Gary Charbonneau
It
may do those things by enacting a certain type of ordinance, that
ordinance being an express or implied assertion that the state and its
people are henceforth not subject to the authority of the Constitution.
Such is the paradoxical nature of this argument that it entails that
that it would be inherently impossible for the Constitution to forbid
secession, regardless of what it says or might say. It entails that
the state and its people are no longer subject to the legal authority
of the Constitution the instant the state adopts a certain type of
ordinance enacted by a certain kind of political body, and that the
constitutionality of that ordinance is inherently exempt from legal
scrutiny (except, perhaps, scrutiny under the state's own constitution
and laws).
An underlying premise of this argument, sometimes stated, sometimes
not, is that the Constitution in no way impaired or impairs the
absolute sovereignty of the people of the individual states. But this,
again, is simply another way of saying that the people of an individual
state may, indeed, lawfully refuse to permit the United States to
exercise one, some, or all of the powers delegated to it by the
Constitution, and may lawfully authorize the state to exercise one,
some, or all of powers denied to the states by the Constitution.
Essentially, the argument presumes that the Constitution is not a law
(certainly not the supreme law of the land, binding on the states and
on their people), but rather a treaty among so many separate sovereign
and independent nations. It presumes that the United Staates is not a
nation, but rather, an international organization -- a "league."
Consequently, any violation of the Constitution would not be a
violation of law, with a remedy in law, but a treaty violation, with no
possible remedy in law because there is no law that applies.

Treaties are legal and have the force of law, people can, and have been
hanged or put in prison for violating them.

[Gary Charbonneau]

Post by Alfred Montestruc

Post by Gary Charbonneau

Post by Alfred Montestruc
The word reserved in the context of the 10th amendment does not mean
"if the feds feel like letting the states or people do X it is allowed,
this time", it means that ALL powers not deligated to the Feds, are
reserved to the people or states and that powers not deligated to the
Feds and forbidden to the states are reserved to the people.

It is true that all powers not delegated to the United States by the
Constitution, nor forbidden to the states therein, are reserved to the
states or to the people. It is also true, however, that certain powers
most definitely are delegated to the United States. The United States
does not need to ask the permission of any state to exercise those
delegated powers, not even within the boundaries of that state.

Until or unless the people of that state undeligate those powers.
If you are going to assert that the constitution forbids such
undeligation, please look at my arguments that supremacy clause cannot
reasonably be interpreted that way and have it be consistent with the
articles of ratification.

I will indeed argue that the supremacy clause can reasonably be
interpreted that way and be perfectly "consistent with the articles of
ratification."

Here is your argument, as stated upthread on Jan. 30th:

"No secession did not violate the supremacy clause as the constitution
does say that states are allowed to do as not explicitly forbidden see
Amendment X, the supremacy clause can be read in such a way that it is
supreme over state law so long as the state stays in the union, if it
is not read that way, then it violates ratification by at least two
states that explicitly stated in their ratification that they could
back out.

"http://www.usconstitution.net/rat_va.html "

My argument is that your claim that "at least two states explicitly
stated in their ratification that they could back out" is simply false.

The web address you cited points to a site for the text of Virginia's
ratification document. There was no claim in that document of any right
to "back out" via unilateral state secession. If you think that such a
claim exists in the document, what are the specific words which make
that alleged claim, and why do you think that this claim is "explicit"?

[Alfred Montestruc]

Post by Gary Charbonneau

Post by Alfred Montestruc

Post by Gary Charbonneau

Post by Alfred Montestruc
The word reserved in the context of the 10th amendment does not mean
"if the feds feel like letting the states or people do X it is allowed,
this time", it means that ALL powers not deligated to the Feds, are
reserved to the people or states and that powers not deligated to the
Feds and forbidden to the states are reserved to the people.

It is true that all powers not delegated to the United States by the
Constitution, nor forbidden to the states therein, are reserved to the
states or to the people. It is also true, however, that certain powers
most definitely are delegated to the United States. The United States
does not need to ask the permission of any state to exercise those
delegated powers, not even within the boundaries of that state.

Until or unless the people of that state undeligate those powers.
If you are going to assert that the constitution forbids such
undeligation, please look at my arguments that supremacy clause cannot
reasonably be interpreted that way and have it be consistent with the
articles of ratification.

I will indeed argue that the supremacy clause can reasonably be
interpreted that way and be perfectly "consistent with the articles of
ratification."
"No secession did not violate the supremacy clause as the constitution
does say that states are allowed to do as not explicitly forbidden see
Amendment X, the supremacy clause can be read in such a way that it is
supreme over state law so long as the state stays in the union, if it
is not read that way, then it violates ratification by at least two
states that explicitly stated in their ratification that they could
back out.
"http://www.usconstitution.net/rat_va.html "
My argument is that your claim that "at least two states explicitly
stated in their ratification that they could back out" is simply false.
The web address you cited points to a site for the text of Virginia's
ratification document. There was no claim in that document of any right
to "back out" via unilateral state secession.

Yes it does.

---quote from cite---

WE the Delegates of the people of Virginia, duly elected in pursuance
of a recommendation from the General Assembly, and now met in
Convention, having fully and freely investigated and discussed the
proceedings of the Federal Convention, and being prepared as well as
the most mature deliberation hath enabled us, to decide thereon, DO in
the name and in behalf of the people of Virginia, declare and


********make known that the powers granted under the Constitution,
being derived from the people of the United States may be resumed by
them whensoever the same shall be perverted to their injury or
oppression,*****(1)

and that every power not granted thereby remains with them and at their
will: that therefore no right of any denomination, can be cancelled,
abridged, restrained or modified, by the Congress, by the Senate or
House of Representatives acting in any capacity, by the President or
any department or officer of the United States, except in those
instances in which power is given by the Constitution for those
purposes: and that among other essential rights, the liberty of
conscience and of the press cannot be cancelled, abridged, restrained
or modified by any authority of the United States.
-------------------end quote

The part in between the astricks gives them the right to back out (may
be resumed by them). A like clause is in the NY ratification.

Post by Gary Charbonneau
If you think that such a
claim exists in the document, what are the specific words which make
that alleged claim, and why do you think that this claim is "explicit"?

[S Witmer]

Post by Alfred Montestruc

Post by Gary Charbonneau

Post by Alfred Montestruc

Post by Gary Charbonneau

Post by Alfred Montestruc
The word reserved in the context of the 10th amendment does not mean
"if the feds feel like letting the states or people do X it is allowed,
this time", it means that ALL powers not deligated to the Feds, are
reserved to the people or states and that powers not deligated to the
Feds and forbidden to the states are reserved to the people.

It is true that all powers not delegated to the United States by the
Constitution, nor forbidden to the states therein, are reserved to the
states or to the people. It is also true, however, that certain powers
most definitely are delegated to the United States. The United States
does not need to ask the permission of any state to exercise those
delegated powers, not even within the boundaries of that state.

Until or unless the people of that state undeligate those powers.
If you are going to assert that the constitution forbids such
undeligation, please look at my arguments that supremacy clause cannot
reasonably be interpreted that way and have it be consistent with the
articles of ratification.

I will indeed argue that the supremacy clause can reasonably be
interpreted that way and be perfectly "consistent with the articles of
ratification."
"No secession did not violate the supremacy clause as the constitution
does say that states are allowed to do as not explicitly forbidden see
Amendment X, the supremacy clause can be read in such a way that it is
supreme over state law so long as the state stays in the union, if it
is not read that way, then it violates ratification by at least two
states that explicitly stated in their ratification that they could
back out.
"http://www.usconstitution.net/rat_va.html "
My argument is that your claim that "at least two states explicitly
stated in their ratification that they could back out" is simply false.
The web address you cited points to a site for the text of Virginia's
ratification document. There was no claim in that document of any right
to "back out" via unilateral state secession.

Yes it does.
---quote from cite---
WE the Delegates of the people of Virginia, duly elected in pursuance
of a recommendation from the General Assembly, and now met in
Convention, having fully and freely investigated and discussed the
proceedings of the Federal Convention, and being prepared as well as
the most mature deliberation hath enabled us, to decide thereon, DO in
the name and in behalf of the people of Virginia, declare and
********make known that the powers granted under the Constitution,
being derived from the people of the United States may be resumed by
them whensoever the same shall be perverted to their injury or
oppression,*****(1)

So, when exactly did the people of the United States vote in favor of
secession? Since when do the people of South Carolina or Virginia
speak for the whole of the people of the United States? I see nothing
above that says "or any part thereof". In short, you are wishing to
grant a power reserved for the entire population to only a small
fraction of that population.

<snip>

[Gary Charbonneau]

Post by Alfred Montestruc

Post by Gary Charbonneau
My argument is that your claim that "at least two states explicitly
stated in their ratification that they could back out" is simply false.
The web address you cited points to a site for the text of Virginia's
ratification document. There was no claim in that document of any right
to "back out" via unilateral state secession.

Yes it does.
---quote from cite---
WE the Delegates of the people of Virginia, duly elected in pursuance
of a recommendation from the General Assembly, and now met in
Convention, having fully and freely investigated and discussed the
proceedings of the Federal Convention, and being prepared as well as
the most mature deliberation hath enabled us, to decide thereon, DO in
the name and in behalf of the people of Virginia, declare and
********make known that the powers granted under the Constitution,
being derived from the people of the United States may be resumed by
them whensoever the same shall be perverted to their injury or
oppression,*****(1)
and that every power not granted thereby remains with them and at their
will: that therefore no right of any denomination, can be cancelled,
abridged, restrained or modified, by the Congress, by the Senate or
House of Representatives acting in any capacity, by the President or
any department or officer of the United States, except in those
instances in which power is given by the Constitution for those
purposes: and that among other essential rights, the liberty of
conscience and of the press cannot be cancelled, abridged, restrained
or modified by any authority of the United States.
-------------------end quote
The part in between the astricks gives them the right to back out (may
be resumed by them). A like clause is in the NY ratification.

I'm afraid you are going to have to do better than that. The part
between the asterisks does not, as you claim it does make an _explicit_
claim to a right to "back out." If you say that it does, then I will
have to respond that you simply do not understand the meaning of the
word "explicit."

I contend that the part between the asterisks not only does not make an
_explicit_ claim of a right to unilateral secession, but that it does
not make an _implicit_ claim of such a right either. I further contend
that you have failed to present any argument that it makes such an
implicit claim. All you have presented is an unsubstantiated assertion
that it does. I will, therefore, now allow you an opportunity to turn
your unsubstantiated assertion into an argument. Why does the passage
between the asterisks constitute an implicit claim of a right to
dissolve the Union by unilateral state action?

[Alfred Montestruc]

---------- Forwarded message ----------
From: "Alfred Montestruc" <***@gmail.com>
To: soc-history-war-us-civil-***@moderators.isc.org
Date: 7 Feb 2006 22:02:53 -0800
Subject: Re: legalities

Post by Gary Charbonneau

Post by Alfred Montestruc

Post by Gary Charbonneau
My argument is that your claim that "at least two states explicitly
stated in their ratification that they could back out" is simply false.
The web address you cited points to a site for the text of Virginia's
ratification document. There was no claim in that document of any right
to "back out" via unilateral state secession.

Yes it does.
---quote from cite---
WE the Delegates of the people of Virginia, duly elected in pursuance
of a recommendation from the General Assembly, and now met in
Convention, having fully and freely investigated and discussed the
proceedings of the Federal Convention, and being prepared as well as
the most mature deliberation hath enabled us, to decide thereon, DO in
the name and in behalf of the people of Virginia, declare and
********make known that the powers granted under the Constitution,
being derived from the people of the United States may be resumed by
them whensoever the same shall be perverted to their injury or
oppression,*****(1)
and that every power not granted thereby remains with them and at their
will: that therefore no right of any denomination, can be cancelled,
abridged, restrained or modified, by the Congress, by the Senate or
House of Representatives acting in any capacity, by the President or
any department or officer of the United States, except in those
instances in which power is given by the Constitution for those
purposes: and that among other essential rights, the liberty of
conscience and of the press cannot be cancelled, abridged, restrained
or modified by any authority of the United States.
-------------------end quote
The part in between the astricks gives them the right to back out (may
be resumed by them). A like clause is in the NY ratification.

I'm afraid you are going to have to do better than that.

I disagree.

Post by Gary Charbonneau
The part
between the asterisks does not, as you claim it does make an _explicit_
claim to a right to "back out."

What is not explicit about "may be resumed by them"? The powers were
originally those of the people of each given state being deligated in
part to the federal government. In context that is an explicit
statement that the people of that or any other state can withdraw
consent from the federal government and undeligate the deligated
authority.

The words "yes" or "no" outside of context mean nothing as to whether
consent has been given. If man tells you you said yes when you ask why
he took your car, it is not permission if you said yes to something
else. "Explicit" anything must be taken in context.

The context of the ratifiaction must be recalled to understand what is
said. In that context, the statement "make known that the powers
granted under the Constitution, being derived from the people of the
United States may be resumed by them whensoever the same shall be
perverted to their injury or oppression" clearly and explicitly
reserves the right of the people of Virginia and all other states for
that matter the to seceed whenever they feel "the same (powers) shall
be perverted to their injury or oppression"

Post by Gary Charbonneau
If you say that it does, then I will
have to respond that you simply do not understand the meaning of the
word "explicit."

You can claim anything you wish --- however---- assertations do not
facts make. I understand the word "explicit", perhaps you do not. You
can read the definition below if
that will help.

http://dictionary.reference.com/search?q=explicit

----snip

[Gary Charbonneau]

Post by Alfred Montestruc
---------- Forwarded message ----------
Date: 7 Feb 2006 22:02:53 -0800
Subject: Re: legalities

Post by Gary Charbonneau

Post by Alfred Montestruc
---quote from cite---
WE the Delegates of the people of Virginia, duly elected in pursuance
of a recommendation from the General Assembly, and now met in
Convention, having fully and freely investigated and discussed the
proceedings of the Federal Convention, and being prepared as well as
the most mature deliberation hath enabled us, to decide thereon, DO in
the name and in behalf of the people of Virginia, declare and
********make known that the powers granted under the Constitution,
being derived from the people of the United States may be resumed by
them whensoever the same shall be perverted to their injury or
oppression,*****(1)
and that every power not granted thereby remains with them and at their
will: that therefore no right of any denomination, can be cancelled,
abridged, restrained or modified, by the Congress, by the Senate or
House of Representatives acting in any capacity, by the President or
any department or officer of the United States, except in those
instances in which power is given by the Constitution for those
purposes: and that among other essential rights, the liberty of
conscience and of the press cannot be cancelled, abridged, restrained
or modified by any authority of the United States.
-------------------end quote
The part in between the astricks gives them the right to back out (may
be resumed by them). A like clause is in the NY ratification.

I'm afraid you are going to have to do better than that.

I disagree.

Post by Gary Charbonneau
The part
between the asterisks does not, as you claim it does make an _explicit_
claim to a right to "back out."

What is not explicit about "may be resumed by them"? The powers were
originally those of the people of each given state being deligated in
part to the federal government. In context that is an explicit
statement that the people of that or any other state can withdraw
consent from the federal government and undeligate the deligated
authority.

There are a couple of things about the Virginia ratification document
that prevent it from being an explicit assertion of a secession right.

First, it is hardly explicit that "the people of the United States"
referred to in the Virginia document are, as you implicitly arguing,
identical to "the people of Virginia" (or any other state you care to
mention). If the Virginia ratifiers meant, by the phrase, "the people
of the the United States," "the people of Virginia," why did they not
say what they meant?

Second, it is hardly explicit that the refusal of a state to allow the
federal government to exercise the powers delegated to it in the
Constitution in that state is logically equivalent to secession.

Let us assume for the moment, contrary to fact and strictly for the
sake of argument, that the inarticulate Virginians were indeed
implicitly claiming that for Virginia to refuse to let the the federal
government exercise its delegated powers in Virginia would be the same
thing as leaving the Union. Is that a valid claim?

Let us perform a thought experiment: Virginia declares that the federal
government is no longer allowed to exercise its constitutionally
delegated powers in Virginia. And again, contrary to fact and strictly
for the sake of argument, let us assume for the moment that Virginia
actually has the constitutional right to prevent the federal government
from exercising the powers of government delegated to it in the
Constitution in that state. We mus at that point ask, "Would this mean
that the Constitution is no longer the supreme law of the land in
Virginia?" The answer to that question is "no."

Your implicit argument that secession is logically equivalent to
denying the federal government the right to exercise its delegated
power in some state rests on the implicit, and totally false,
assumption that the Constitution does nothing but delegate powers to
the federal government. It does more than that. Among the additional
things it does are (1) to specify the organization of the federal
government and the mode of selection of its principal officers; (2) to
lay down the rules for its own amendment; (3) to deny states the right
to exercise certain powers of government; and (4) to impose obligations
on the states. Let us consider each of these individually:

(1) The Constitution specifies the organization of the federal
government and the mode of selection of its principal officers. If
Virginia asserts that the federal government may no longer exercise its
delegated powers in Virginia, has the federal government ceased to
exist? Of course it has not. Even you do not deny that it has. Is,
therefore, Virginia legally entitled to two senators, and to members of
the House of Representatives proportional to its population? Yes,
because Virginia is legally entitled to that congressional
representation. Legally entitled by what? The Constitution of the
United States. Similarly, Virginia would be legally entitled to
appoint electors to help choose a president of the United States.
Legally entitled by what? The Constitution of the United States,
because Virginia is still a member of the Union. Therefore, even if
Virginia could lawfully declare that the federal government could not
exercise its delegated powers in Virginia, it would nevertheless be
entitled to representation in the federal government for the purposes
of making laws that would continue to apply in other states. Virginia
would still be a member of the Union, because the Constitution would
still be the supreme law of the land in Virginia, despite its
declaration that the the federal government could not exercise its
delegated powers in Virginia.

(2) The Constitution laws down rules for its own amendment. If
Virginia asserts that the federal government may no longer exercise any
of its delegated powers in Virginia, is it the case that the
Constitution may no longer be amended? Certainly not. Is Virginia
legally entitled to participate in the process of amending the
Constitution? Yes. Legally entitled by what? The Constitution of the
United States. Even if it refuses to participate, it still
participates, because it is still counted as a state of the United
States for purposes of determining how many states not to ratify any
proposed amendment. The Constituition remains the supreme law of the
land in Virginia, and Virginia remains a member of the Union.

(3) The Constitution denies the states the right to exercise certain
powers of government. Note that the delegation of a power to the
federal government is not the logical equivalent to denying that same
power to the states. Delegating a power to the federal government, and
denying that power to the states, requires separate provisions (or
separate parts of the same provision). The federal government was
delegated the power to levy an income tax by the 16th Amendment, but
that did not deny the states the power to levy income taxes (a fact of
which I am reminded every year around April 15th). Note also that a
power may be denied to the states even though it has not been delegated
to the federal government. If Virginia asserts that the federal
government may no longer exercise any of its delegated powers in
Virginia, is Virginia henceforth legally entitled to grant titles of
nobility? No, it is not? Why isn't it? Because the Constitution says
that states may not grant titles of nobility, and the Constitution
remains the supreme law of the land in Virginia. The power to grant
titles of nobility is expressly forbidden to the federal government by
the Constitution. Virginia cannot "resume" a power that was never
"delegated" in the first place, so it would remain subject to the
constitutional provision that states may not grant titles of nobility.
It's still a member of the Union.

(4) The Constitution imposes certain obligations on the states with
regard to each other. For example, the states must extradite wanted
fugitives to other states on demand, per Article IV, section 2. That
provision delegates no power to the federal government. If Virginia
asserts that the federal government may no longer exercise any of its
delegated powers in Virginia, is Virginia legally obligated to
extradite wanted fugitives to other states on demand? Yes, because of
Article IV, Sec. 2. Though the federal government might be legally
powerless in Virginia, Virginia is still a member of the Union and is
still required to return wanted fugitives to other states of the Union
per Article IV, Sec. 2. Similarly, Virginia is, as a member of the
Union, still constitutionally required to give full faith and credit to
the "public Acts, Records, and judicial Proceedings of every other
State," even if it denies to Congress the right to specify what that
means in Virginia.

Bottom line: If Virginia meant to assert a secession right in its
ratification document, it failed to do so, because secession is not
logically equivalent to denying the federal government the right to
exercise its delegated powers in the state. The Constitution does more
than delegate powers to the federal government.

Nevertheless, it might still be theoretically possible that, although
Virginia failed to assert a secession right in its ratification
document (because its ratification convention was as befuddled about
the Constitution as you are), it actually meant to assert such a thing
but found itself tongue-tied. I will consider that possibility in a
separate reply.

[Gary Charbonneau]

Post by Alfred Montestruc

Post by Gary Charbonneau

Post by Al Montestruc
WE the Delegates of the people of Virginia, duly elected in pursuance
of a recommendation from the General Assembly, and now met in
Convention, having fully and freely investigated and discussed the
proceedings of the Federal Convention, and being prepared as well as
the most mature deliberation hath enabled us, to decide thereon, DO in
the name and in behalf of the people of Virginia, declare and
********make known that the powers granted under the Constitution,
being derived from the people of the United States may be resumed by
them whensoever the same shall be perverted to their injury or
oppression,*****(1)
and that every power not granted thereby remains with them and at their
will: that therefore no right of any denomination, can be cancelled,
abridged, restrained or modified, by the Congress, by the Senate or
House of Representatives acting in any capacity, by the President or
any department or officer of the United States, except in those
instances in which power is given by the Constitution for those
purposes: and that among other essential rights, the liberty of
conscience and of the press cannot be cancelled, abridged, restrained
or modified by any authority of the United States.
-------------------end quote
The part in between the astricks gives them the right to back out (may
be resumed by them). A like clause is in the NY ratification.

I'm afraid you are going to have to do better than that.

I disagree.

Post by Gary Charbonneau
The part
between the asterisks does not, as you claim it does make an _explicit_
claim to a right to "back out."

What is not explicit about "may be resumed by them"? The powers were
originally those of the people of each given state being deligated in
part to the federal government. In context that is an explicit
statement that the people of that or any other state can withdraw
consent from the federal government and undeligate the deligated
authority.

In another post I demonstrated that "secession" and "denying the
federal government the right to exercise its constitutionally delegated
powers in a state" are not logically equivalent. Therefore, if
Virginia thought that it was asserting, in its instrument of
ratification, that under the Constitution it could secede from the
Union by "resuming" powers delegated by the Constitution to the federal
government, it got it wrong. It was asserting no such thing.

In this post, I turn to the the question of what Virginia THOUGHT it
was asserting. Did Virginia believe (erroneously) that it was
asserting a secession right in its ratification document?

To answer this question, we need to stop talking about "Virginia." We
need to talk about who came up with the words "between the asterisks"
in the ratification. What did he, or they, think about the right of a
state to dissolve the union by unilateral state action?

Can we, in fact, determine who proposed those words? Yes, we can. It
was George Wythe. Wythe had presided over the Virginia ratification
convention during most of its sessions. On June 24th, 1788, he stepped
down from the chair to offer a resolution in favor of ratification.
According to the minutes of the convention, "[The resolution of
ratification proposed by Mr. Wythe was then read by the clerk; which
see hereafter in the report of the committee to the Convention.]" What
committee are the minutes referring to? It was a committee appointed
on the following day: "On motion, Ordered, That a committee be
appointed to prepare and report a form of ratification pursuant to the
first resolution; and that Governor Randolph, Mr. Nicholas, Mr.
Madison, Mr. Marshall, and Mr. Corbin, compose the said committee."
The "first resolution" was the resolution that had been offered by
Wythe the previous day.

OK, that may be a bit hard to follow. Can we be sure that the
substance of the wording in question relating to "resuming" powers of
government originated with George Wythe's resolution of June 24th?
Yes, we can, because on that same day James Madison said: "With respect
to the proposition of the honorable gentleman to my left, (Mr. Wythe,)
gentlemen apprehend that, by enumerating three rights, it implied there
were no more. The observations made by a gentleman lately up, on that
subject, correspond precisely with my opinion. That resolution declares
that the powers granted by the proposed Constitution are the gift of
the people, and may be resumed by them when perverted to their
oppression, and every power not granted thereby remains with the
people, and at their will. It adds, likewise, that no right, of any
denomination, can be cancelled, abridged, restrained, or modified, by
the general government, or any of its officers, except in those
instances in which power is given by the Constitution for these
purposes." Thus, we can say with certainty that the wording of the
ratification instrument that is at the core of your argument that
Virginia claimed a secession right ("that the powers granted under the
Constitution being derived from the people of the United States may be
resumed by them whensoever the same shall be perverted to their injury
or oppression") were largely borrowed from Wythe's June 24th
resolution, borrowed by the committee that was appointed the following
day to draw up the ratification document.

Having demonstrated that the words about "resuming" powers "perverted
to injury and oppression" originated with George Wythe, we can now ask
whether Wythe thought on June 24th that he was offering a resolution in
favor of of a ratification that asserted a secession right. The answer
to that question is "no." How do we know? Because according to the
minutes of the convention that, Wythe opened his speech as follows:
"Mr. WYTHE arose, and addressed the chairman; but he spoke so very low
that his speech could not be fully comprehended. He took a cursory view
of the situation of the United States previous to the late war, their
resistance to the oppression of Great Britain, and the glorious
conclusion and issue of that arduous conflict. To perpetuate the
blessings of freedom, happiness, and independence, he demonstrated the
necessity of a firm, indissoluble union of the states."

An "indissoluble union of the states" is not a union that can be
dissolved by the unilateral act of a single state, and clearly Wythe
did not think that his resolution called for such a union. You have
claimed that the Virginia ratification document asserted a secession
right -- asserted the claim that the Union was dissoluble. You need to
reconcile that claim with the fact that the author of the very words
that you say asserted such a right, in the very same speech in which he
introduced those words for consideration by the ratification
convention, EXPLICITLY advocated an indissoluble union of the states.

[Wood]

You are arguing two contradictory points.

First, RDubose wrote:

" Whatever S. Carolina was after its legislature passed an ordinance
of secession, it was not a "state" in the prior meaning of the word. If

secession was to stand up over time, then it was a seperate and
sovereign nation sharing a border with the USA although with zero
interlocking, binding "legal" treaties or mutual restraints. In other
words, Lincoln with the support of congress - which was provided over
and over again - could declare and make war upon that new entity as
they saw fit. No court was needed for that to happen.
In the view of the USA, the legislators in the seceeding states
committed high treason and so were in a state of rebellion, the
suppression of which the constitution provided authorization. No
different than the whiskey rebellion in the time of G. Washington.
Since the legislature of those states were liable to be arrested
for the crimes of treason and insurrection it could be said that the
seceeding states were now only territories to be administered by the
Federal Government. "

Then Al Montestuc wrote,

"This was not nullification, secession was a whole new animal.
Nullification means violation of the supremacy clause pure and simple.
It does not follow that the supremacy clause should apply to a seperate

nation no longer part of the USA, and no longer under it's protection."

So which was it? Was SC and the other states in rebellion or were they
foreign hostile states?

If they were states in rebellion, then how was this applicable to the
Militia Act of 1795? This was a duely elected and recognized by the
Federal government, state assembly which under Article IV section 1,

" Full Faith and Credit shall be given in each State to the public
Acts, Records, and judicial Proceedings of every other State. And the
Congress may by general Laws prescribe the Manner in which such Acts,
Records and Proceedings shall be proved, and the Effect thereof."

In which case the proper course of action by the Lincoln government
should have been to send the Attorney General to the SCOTUS the day
after swearing in to invalidate the secession ordinance. If upheld,
this alone would have most likely held Virginia, Tennessee, and
Arkansas in the Union. They only seceded after they perceived POTUS
exceeding his rights by invading a member state. Having a legal ruling
that the duly constituted government of the seceded states were
proceeding with an unconstitutional action (secession) would have
swayed a lot of minds in those states and enforced the Union loyalist
movements in the seceded states.

Of course, if you take the position that SC seceding DID make her and
the others in fact a hostile foreign power, where exactly did Lincoln
have a leg to stand on in sending in the Star of the West to resupply
his troops at Sumter? That was an invasion of foreign soil without the
declaration of war from Congress as clearly outlined in Article I,
Section 8,

"The Congress shall have Power To lay and collect Taxes, Duties,
Imposts and Excises, to pay the Debts and provide for the common
Defence and general Welfare of the United States; but all Duties,
Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States; To regulate
Commerce with foreign Nations, and among the several States, and with
the Indian Tribes; To constitute Tribunals inferior to the supreme
Court; To define and punish Piracies and Felonies committed on the high
Seas, and Offences against the Law of Nations; To declare War, grant
Letters of Marque and Reprisal, and make Rules concerning Captures on
Land and Water; To raise and support Armies, but no Appropriation of
Money to that Use shall be for a longer Term than two Years; To provide
and maintain a Navy; To make Rules for the Government and Regulation of
the land and naval Forces; To provide for calling forth the Militia to
execute the Laws of the Union, suppress Insurrections and repel
Invasions; To provide for organizing, arming, and disciplining, the
Militia, and for governing such Part of them as may be employed in the
Service of the United States, reserving to the States respectively, the
Appointment of the Officers, and the Authority of training the Militia
according to the discipline prescribed by Congress; To exercise
exclusive Legislation in all Cases whatsoever, over such District (not
exceeding ten Miles square) as may, by Cession of Particular States,
and the Acceptance of Congress, become the Seat of the Government of
the United States, and to exercise like Authority over all Places
purchased by the Consent of the Legislature of the State in which the
Same shall be, for the Erection of Forts, Magazines, Arsenals,
dock-Yards and other needful Buildings;--And To make all Laws which
shall be necessary and proper for carrying into Execution the foregoing
Powers and all other Powers vested by this Constitution in the
Government of the United States, or in any Department or Officer
thereof."

Where exactly in there did Lincoln find the right to invade foreign
territory, if the foreign territory argument is valid?

So, that leaves the War Powers argument. Article II, Section 2,

"The President shall be commander in chief of the Army and Navy of the
United States, and of the militia of the several states, when called
into the actual service of the United States..."

In the twenty first century, subsequent rulings by SCOTUS have twisted
this way out of the accepted understanding in 1860. But from the 1860
understanding and rulings of SCOTUS up to that point, Lincoln had no
right to unilaterally declare war on a foreign state by invading their
territory, which the Star of the West and indeed, the movement of
Federal Troops from a recognized duty post to the unmanned Ft. Sumter
constitued. That is, under the argument of foreign state.

His actual actions were under either argument a violation of his oath
of office under Article II,

"Before he enter on the execution of his office, he shall take the
following oath or affirmation:--"I do solemnly swear (or affirm) that I
will faithfully execute the office of President of the United States,
and will to the best of my ability, preserve, protect and defend the
Constitution of the United States."

Fortunately for him, the Tandy Court, absent the SC Justices from the
Seceded States, ruled in his favor after his blockade actions. During
the Civil War, the Court issued two significant opinions interpreting
the war powers. In the Prize Cases (1863), the Court on a 5 to 4 vote
upheld President Lincoln's order blockading southern ports--even though
the order was issues prior to a formal declaration of war on the Rebel
states by Congress. The Court found Lincoln's action authorized by a
1795 Act allowing the President to call out troops to suppress an
insurrection. The dissenters argued the President's action were
unconstitutional, as a blockade is quite different that an action
merely directed at those participating in an insurrection.

Frankly, the best that can be said is that Lincoln was right because,
and only because he won. That was the position of the British
Parliament after Yorktown, and the position of the Confederate officers
and officials after Appomatox Courthouse and Durham Station.

[Will]

Post by Wood
...
So which was it? Was SC and the other states in rebellion or were they
foreign hostile states?

In rebellion.

Post by Wood
If they were states in rebellion, then how was this applicable to the
Militia Act of 1795?

The Miltia Act sells out how the President can respond the rebellion.

Post by Wood
In which case the proper course of action by the Lincoln government
should have been to send the Attorney General to the SCOTUS the day
after swearing in to invalidate the secession ordinance.

Why was this a proper course of action? The Presidents duty was to
enforce US laws. State laws irrelevant to that duty.

Post by Wood
... If upheld,
this alone would have most likely held Virginia, Tennessee, and
Arkansas in the Union. They only seceded after they perceived POTUS
exceeding his rights by invading a member state.

Doubtful that it woudl have made a difference since the use of force
against the rebel states would result in the same situation.

[Wood]

So Will, you're saying he's right because he's right. "Because I'm the
President, that's why!"

Seriously, read the applicable statues. If they were States according
to the Federal authorities, they retained their States Rights for their
actions to be recognized as valid unless overturned by SC ruling. You
cannot have it both ways.

[r***@pdq.net]

Post by Wood
So Will, you're saying he's right because he's right. "Because I'm the
President, that's why!"
Seriously, read the applicable statues. If they were States according
to the Federal authorities, they retained their States Rights for their
actions to be recognized as valid unless overturned by SC ruling. You
cannot have it both ways.

I confess that this line of argument makes me dizzy. The actions
that are to be "recognized as valid" which were taken by these "states"
were their ordnances of secession. In other words, they are alleged to
possess a right to secede which allows them to assert their seceded
status before the SCOTUS. All for the purpose of exerting the fact that
they are not in any way bound by the jurisdiction of the SCOTUS nor are
they even citizens of the USA. Why on earth would they bother?
This is very strange. None of the various articles of secession
said, "Pending the Approval of the SCOTUS." Nothing in them implied any
such tentativeness, despite their mutterings about it.
The revolutionists in 1776 were quite clear headed about what they
were signing on for. They never confused themselves with
psuedo-legalisms. They knew a fight to the death when they saw one.
That clear headedness helped them prevail.
The contrast presented by the southerners in 1861 was total.

[Wood]

It only makes you dizzy if you believe that there was only one valid
argument. I believe that both the Unionist and the Secessionist had
valid arguments. The Unionist argument as stated by Lincoln depended
upon implyed perpituity. The Secessionist argument depended upon the
absense of any specific mention of perpituity of the Union and the
States Powers clause.

The Secessionist therefore passed a bill which, to their interpretation
of the full faith and credit article, was valid. Just like every other
case in US history where the Federal government believes a member State
has passed an illegal or unconstitutional action, the proper course was
to protest it before SCOTUS. It never has been the duty of the member
State to take every one of their actions to SCOTUS to make sure it was
valid, the burden is always on the protesting party. In this case,
since the Buchannan administration didn't see fit to do so, the burden
fell on the Lincoln administration.

Let's take the case of Eisenhower nationalizing the National Guard in
Little Rock in the 1950's. He was enforcing a decision of SCOTUS
invalidating Arkansas state law. The same with Kennedy in Tuscaloosa,
AL in the 1960's. There have been numerous actions of the like. Please
name one other time where the Federal government sent troops into a
member State to overturn a State bill of law without a SCOTUS finding.
I can think of none.

You may argue that Lincoln took the right course, but that is purely
subjective. The fact remains that Lincoln failed to take the legal
course, and therefore lost Virginia, Tennessee, and Arkansas to the
Confederate cause and weakened the Southern Unionist movement. This in
turn lost him Lee as a general and numerous other Virginia Generals and
therefore prolonged the war and the bloodshed on all sides.

[Will]

... The Unionist argument as stated by Lincoln depended
upon implyed perpituity.

It also relies on the stated supremacy of the Constitution.

... The Secessionist argument depended upon the
absense of any specific mention of perpituity of the Union and the
States Powers clause.

Not necessarily. The argument South Carolina put forward rested on the
idea that when a contract has been breached by another, it is no longer
binding.

The Secessionist therefore passed a bill which, to their interpretation
of the full faith and credit article, was valid.

The full faith and credit clause only applies to how one state viewes
that actions of another state. It has no bearing on how the actions of
a state are viewed by the federal government.

... Just like every other
case in US history where the Federal government believes a member State
has passed an illegal or unconstitutional action, the proper course was
to protest it before SCOTUS.

This claim that "just like every other case" is factually untrue.

Let's take the case of Eisenhower nationalizing the National Guard in
Little Rock in the 1950's. He was enforcing a decision of SCOTUS
invalidating Arkansas state law.

But the federal government was not the party that protested it to the
SCOTUS.

... The same with Kennedy in Tuscaloosa,
AL in the 1960's. There have been numerous actions of the like. Please
name one other time where the Federal government sent troops into a
member State to overturn a State bill of law without a SCOTUS finding.
I can think of none.

Lincoln did not send troops to overturn a State bill of law. Lincoln
sent trops to protect federla proerty and to enforce US law. This has
been done a number of times by Presidents.

You may argue that Lincoln took the right course, but that is purely
subjective. The fact remains that Lincoln failed to take the legal
course

False. That is not a fact but merely your poorly reasoned claim.

... and therefore lost Virginia, Tennessee, and Arkansas to the
Confederate cause and weakened the Southern Unionist movement. This in
turn lost him Lee as a general and numerous other Virginia Generals and
therefore prolonged the war and the bloodshed on all sides.

He would have lost them in any case.

[Wood]

Will, I certainly agree with you that Lincoln's argument depended upon
the supremacy of the Constitution. So did the Secessionist argument. In
their view, they were following the Constitutional provisions. That is
where and why SCOTUS should have been called in by the protesting
party, in this case the Federal Government.

I also agree with you that the Secessionist believed the Constitution
to have been breeched by the non-slave owning states. Specifically,

"Section 2. The citizens of each state shall be entitled to all
privileges and immunities of citizens in the several states.

A person charged in any state with treason, felony, or other crime, who
shall flee from justice, and be found in another state, shall on demand
of the executive authority of the state from which he fled, be
delivered up, to be removed to the state having jurisdiction of the
crime.

No person held to service or labor in one state, under the laws
thereof, escaping into another, shall, in consequence of any law or
regulation therein, be discharged from such service or labor, but shall
be delivered up on claim of the party to whom such service or labor may
be due."

That however was the cause. The procedure was what I was pointing out.

The Full Faith and Credit clause certainly did and still does bind the
Federal government,

"Section 1. Full faith and credit shall be given in each state to the
public acts, records, and judicial proceedings of every other state.
And the Congress may by general laws prescribe the manner in which such
acts, records, and proceedings shall be proved, and the effect
thereof."

There may be indeed specific laws that may bear on this issue that I'm
not aware of. However, by this point in time, the SCOTUS had
established itself in a stronger position of saying what the
Constitution actually meant than it was when Jackson kicked the Indians
out of the South.

I'll rephrase, every other case where a dispute between a State and the
Federal government could not otherwise be resolved.

As far as the Eisenhower example goes, I clearly used it to show the
Federal response to the ruling of SCOTUS in a case involving a State
law. I never intended to say the Feds took the State to court in that
issue. It's still a valid example of a dispute between the Fed and a
member state hinging upon the ruling of the Supreme Court.

To protect Federal property? Exactly what Federal property was at risk
in Bull Run? You conveniently forget that the Secessionist immediately
offered to negotiate compensation for Federal property in the now
independent states. They also forfeited all claims to lands in the
western unorganized territories. (BTW, watch out. Cash will undoubtedly
make fun of your "federla proerty". We really need a spellchecker on
this site!)

If it is indeed my "poorly reasoned claim" Will, I join the Attorney
General of the 15th President, Supreme Court Justice Campbell, and Vice
President Breckenridge, among other legal and political scholars of the
era in the opinion. I can live with that.

Would he have lost them in any case? According to the Virginia
Historical Society,

"After the election of President Abraham Lincoln in 1860, South
Carolina broke away from the Union, and was followed early the next
year by Mississippi, Alabama, Florida, Georgia, Louisiana, and Texas.
These states viewed Lincoln as a threat to slavery, labeling him a
"Black Republican." However, when Virginia delegates began talks in
February, a conservative tone prevailed, and a preliminary vote for
secession failed. As the South's most populous state-and the richest
in natural resources-the decision of the Old Dominion was a momentous
one for the future of the Confederacy.

In President Lincoln's inaugural address of March 4th, he promised not
to interfere with slavery in the states where it existed but condemned
secession, stating that "the central idea of secession is the essence
of anarchy." Virginians wondered what fate would befall the Deep South
states, and what the implications might be of a strong Federal
government. The debates continued until April 15th, when Richmond
newspapers reported Lincoln's call for 75,000 troops to suppress the
uprising. As a member of the Union, Virginia would be required to send
8,000 soldiers. This proved to be the breaking point for delegates, and
the convention chose to stand with other southerners and vote for
secession."

According to Just North of Their Homes: The Defeat of Unionism in
Virginia, November 1860 - April 1861, by Ashley Evans,

"The significance of the attack on Sumter on decision to secede has
been debated by historians. Historian James McPherson points to the
secessionist mobs which marched in Richmond immediately after the
attack on Sumter, and thus declares that the attack itself reversed
public opinion to make secession immediate and inevitable. (43)
However, historian Daniel Crofts, who examined the rhetoric of the
leaders, cites Jubal Early, then a Unionist and soon a Confederate, who
declared on April 13 that it was a "fallacy" that popular opinion had
changed: secessionists mobs did not represent the "masses of people in
Virginia." (44)

However, there is no doubt that news of Lincoln's proclamation,
calling for seventy-five thousand troops and marking the outbreak of
general war, served to turn public opinion soundly to secession. When
Virginians heard this news, they met it with shock and disillusionment;
when they understood it, the defeat of the cause of peace and unity was
sudden and complete. Stuart, who had spoken to Lincoln himself two
short days before, claimed at first that it was a "sensation document,
gotten up by some mischievous persons"(45) for he could not believe
that Lincoln was "guilty of such duplicity." (46) Duplicity may have
been a harsh charge to lay upon Lincoln, but, by issuing the
proclamation, Lincoln's rejection of the overtures made by Upper South
Unionists was clear, and obvious too was the action they had to take.
By April 17, the once solidly Unionist Virginia convention voted,
eighty-eight to fifty, to secede from the union."

I guess that makes it your burden that this is not your poorly reasoned
claim.

[Will]

Post by Wood
To protect Federal property? Exactly what Federal property was at risk
in Bull Run?

Not sure what you mean about Bull Run. If you cant see that federal
property was taken and federal law obstructed, then the gulf between us
is too vast.

Post by Wood
... You conveniently forget that the Secessionist immediately
offered to negotiate compensation for Federal property in the now
independent states.

I did not forget that. I just find it irrelevant to the issue of what
was Lincoln's proper course of action.

Post by Wood
If it is indeed my "poorly reasoned claim" Will, I join the Attorney
General of the 15th President, Supreme Court Justice Campbell, and Vice
President Breckenridge, among other legal and political scholars of the
era in the opinion. I can live with that.

To my knowldedge, neither Buchanan's Attorney General nor Justice
Campbell support your position.

Post by Wood
Would he have lost them in any case?

The SCOTUS would have ruled the secesison was unconstitutional, that
those states claiming to have seceeded were still in the US and were
acting in rebellion against US law. Lincoln could then use that ruling
to call up militia to move against the rebels and we are right back
were we started with respect to Virginia.

[Will]

Post by Wood
...
The Full Faith and Credit clause certainly did and still does bind the
Federal government,

That Clause regulates how one state must treat the actions of another
state.
It does not regulate how the federal government must view the actions
of a state.

Post by Wood
I'll rephrase, every other case where a dispute between a State and the
Federal government could not otherwise be resolved.

An easy example that show you are wrong is the nullification crisis of
1832: Jackson did not seek a SCOTUS ruling before taking action.

Post by Wood
As far as the Eisenhower example goes, I clearly used it to show the
Federal response to the ruling of SCOTUS in a case involving a State
law. I never intended to say the Feds took the State to court in that
issue. It's still a valid example of a dispute between the Fed and a
member state hinging upon the ruling of the Supreme Court.

When the State of Arkansas resisted the implementation of a US District
Court order, no new SCOTUS ruling was sought. Eisnehower issued a
proclamation similar to Lincoln's and sent in troops. So this example
does not support your contention about Lincoln; in fact it demonstrates
the very opposite.

[H***@comcast.net]

Of course, the two 20th Century Civil Rights' instances were after
the Supreme Court had ruled.

Given the length of time it takes the Court to make a decision,
Lincoln's term would have been long over before they could make a
ruling. And the CSA would have been in existence for several year, with
full foreign recognition.

And, let us be honest, the seceding states would have ignored a
decision against them.

In addition, if Lincoln had an obligation to go to the courts, then how
about South Carolina and the other seceding states doing the same
before they seized United States' property? And before they opened
fire on a United States' garrison flying the Untied States' flag?

You assume that had Lincoln NOT responded to the attack on Fort Sumter,
the upper South slave states would have remained loyal. There is a good
body of evidence that Davis attacked Sumter to bring them into the CS.
And additional delays and non-action by Washington could also have led
to Virginia et. al., seceding.

Your argument of the various responsibilities for seeking court action
is also faulty once Sumter is attacked. Lincoln then, as President, had
a constitutional responsibility to defend the country which had been
attacked by lawless elements.

His failure to do anything would probably have led to his impeachment.

When Lincoln responded by calling out the militia and taking a hard
line against secession, he also saved Missouri, Kentucky, Maryland and
western Virginia - and, even more important, brought in the Northern
Democrats in support of his actions.

Take care,

Bob

Judy and Bob Huddleston
10643 Sperry Street
Northglenn, CO 80234-3612
303.451.6376 ***@comcast.net

"Don't argue with someone who claims the earth is flat. You haven't
given it a second thought, whereas he has spent 20 years thinking about
and obsessing over why it is flat."


Wood wrote:
SNIP

Post by Wood
The Secessionist therefore passed a bill which, to their interpretation
of the full faith and credit article, was valid. Just like every other
case in US history where the Federal government believes a member State
has passed an illegal or unconstitutional action, the proper course was
to protest it before SCOTUS. It never has been the duty of the member
State to take every one of their actions to SCOTUS to make sure it was
valid, the burden is always on the protesting party. In this case,
since the Buchannan administration didn't see fit to do so, the burden
fell on the Lincoln administration.

SNI

Post by Wood
You may argue that Lincoln took the right course, but that is purely
subjective. The fact remains that Lincoln failed to take the legal
course, and therefore lost Virginia, Tennessee, and Arkansas to the
Confederate cause and weakened the Southern Unionist movement. This in
turn lost him Lee as a general and numerous other Virginia Generals and
therefore prolonged the war and the bloodshed on all sides.

[Wood]

No Bob, after the damage had been done, the war had to be pursued. Just
like this mess that Bush 43 has gotten us bogged down in Iraq. The
Southern States clearly intended for compensation talks to be held over
the Federal property. The garrison at Ft. Sumter continued to receive
supplies from the City of Charleston well after they made their middle
of the night move the evening of December 24, 1860. It wasn't until the
Federal forces tried to resupply them with arms that the State of South
Carolina forces fired on the Federal ship.

Concerning the Secessionist States initiating action in the Supreme
Court, they had already won there. I believe that Dred Scott was a 9-0
decision in the slave states favor. Since the Northern States largely
refused to live by it, and they believed that Lincoln had no interest
in enforcing it, what was the use?

They passed ordinances that were voted on by the legislature of the
State, radified by the voting population of the State, and in their
minds, now had no legal standing in SCOTUS, no longer being a party to
the Union.

It's the Unionist side that refused to recognize that they were no
longer full fledged States. Therefore the Unionists were bonded to the
proposition that the Constitutional remedies still applied. No, I don't
think it would have made a bit of difference in SC, AL or a handfull of
the Deep South States. However, it might have swung the tide in VA and
TN, and saved lives. As far as how quickly the SCOTUS would have heard
the case, how quickly was the Bush vs. Gore dispute heard? SCOTUS moves
very quickly when it needs to.

[Stephen Graham]

Post by Wood
The
Southern States clearly intended for compensation talks to be held over
the Federal property.

Which is completely irrelevant once they seized the property.

Post by Wood
The garrison at Ft. Sumter continued to receive
supplies from the City of Charleston well after they made their middle
of the night move the evening of December 24, 1860. It wasn't until the
Federal forces tried to resupply them with arms that the State of South
Carolina forces fired on the Federal ship.

Which from the Federal perspective was perfectly legal: A US flagged
merchant traveling to US territory.

Post by Wood
Concerning the Secessionist States initiating action in the Supreme
Court, they had already won there. I believe that Dred Scott was a 9-0
decision in the slave states favor.

Dred Scott was a 7-2 decision. You are also apparently mistaken as to
what the Dred Scott decision actually was.

Post by Wood
It's the Unionist side that refused to recognize that they were no
longer full fledged States.

Because by the Union interpretation, they remained states.

Post by Wood
Therefore the Unionists were bonded to the
proposition that the Constitutional remedies still applied.

Lincoln did pursue the Constitutional remedy. He pursued his duty as
laid out by law.

[scribe7716]

Post by Wood
The Secessionist argument depended upon the
absense of any specific mention of perpituity of the Union and the
States Powers clause.

I disremember, what was the States Powers clause? And was it "States'
Powers" or "State's Powers?"

[Rich Rostrom]

Post by Wood
The Secessionist therefore passed a bill which, to their interpretation
of the full faith and credit article, was valid.

Wrong on on at least two counts.

Secession was not enacted by 'bills' which are passed
by legislatures, with the partial exception of Arkansas.

Instead secession conventions met and passed resolutions.

Second, the "full faith and credit" clause applies to
the court proceedings and government records of the
states (including the record of legislative actions).
That is, if one state says X or Y or Z happened, in a
legal or official process, the other states must take
that as a fact.

It does not mean that a state must accept any other
state's finding or declaration of fact on a matter not
justiciable by a state.

For instance, a state clearly has the power to record
marriages - therefore a marriage in Arkansas is legal
in Vermont. A state court has the power to award civil
damages, so a damage award by a New Jersey court is
enforceable against a resident of Idaho. The same with
wills, titles, incorporations, divorces, contracts,
and so on.

In this case, the "full faith and credit" would
require other states to acknowledge that Alabama,
for instance, had indeed passed a resolution of
secession - but not that the resolution was valid,
because a state does not have the power to decide
whether secession is valid or not.

[Will]

Post by Wood
So Will, you're saying he's right because he's right. "Because I'm the
President, that's why!"

No, I am not saying thaT.

Could you expand upon why you might think I was saying that?

Post by Wood
Seriously, read the applicable statues. If they were States according
to the Federal authorities, they retained their States Rights for their
actions to be recognized as valid unless overturned by SC ruling. You
cannot have it both ways.

What am I having both ways? My position is logically consistent as
far as I can see. If you see it differently, please explain.

The President does not answer to State actions. He has to recognize
federal laws as valid and applicable unless overturned by SC ruling.
The President, and the federal government in general, do not have to
recognize as valid any state law that conflicts with the administration
of US laws.

[Cash]

Post by Wood
So which was it? Was SC and the other states in rebellion or were they
foreign hostile states?

----------------------
They were in rebellion.

Post by Wood
If they were states in rebellion, then how was this applicable to the
Militia Act of 1795?

-----------------------
I take it you've never read the Militia Act of 1795, otherwise you wouldn't
have to ask that question.




This was a duely elected and recognized by the

Post by Wood
Federal government, state assembly which under Article IV section 1,
" Full Faith and Credit shall be given in each State to the public
Acts, Records, and judicial Proceedings of every other State. And the
Congress may by general Laws prescribe the Manner in which such Acts,
Records and Proceedings shall be proved, and the Effect thereof."

----------------------------
By Article VI, Clause 3 they were no longer qualified to hold office under
the U.S. Constitution.

Post by Wood
In which case the proper course of action by the Lincoln government
should have been to send the Attorney General to the SCOTUS the day
after swearing in to invalidate the secession ordinance.

-----------------------------
That's not the way the Supreme Court works.




If upheld,

Post by Wood
this alone would have most likely held Virginia, Tennessee, and
Arkansas in the Union. They only seceded after they perceived POTUS
exceeding his rights by invading a member state.

------------------------------
No, it wouldn't, and no, they didn't. They stayed with the Union as long as
there was a chance the crisis could be resolved peacefully. Once it was
clear this wasn't the case, they went with the slave states.

Post by Wood
Fortunately for him, the Tandy Court,

------------------------------
Did they hold their hearings at the local Radio Shack? : )

Post by Wood
Frankly, the best that can be said is that Lincoln was right because,
and only because he won. That was the position of the British
Parliament after Yorktown, and the position of the Confederate officers
and officials after Appomatox Courthouse and Durham Station.

----------------------------------
Frankly, you've got no idea what you're talking about.

Regards,
Cash

[Alfred Montestruc]

Post by Wood
You are arguing two contradictory points.
" Whatever S. Carolina was after its legislature passed an ordinance
of secession, it was not a "state" in the prior meaning of the word. If
secession was to stand up over time, then it was a seperate and
sovereign nation sharing a border with the USA although with zero
interlocking, binding "legal" treaties or mutual restraints. In other
words, Lincoln with the support of congress - which was provided over
and over again - could declare and make war upon that new entity as
they saw fit. No court was needed for that to happen.
In the view of the USA, the legislators in the seceeding states
committed high treason and so were in a state of rebellion, the
suppression of which the constitution provided authorization. No
different than the whiskey rebellion in the time of G. Washington.
Since the legislature of those states were liable to be arrested
for the crimes of treason and insurrection it could be said that the
seceeding states were now only territories to be administered by the
Federal Government. "
Then Al Montestuc wrote,
"This was not nullification, secession was a whole new animal.
Nullification means violation of the supremacy clause pure and simple.
It does not follow that the supremacy clause should apply to a seperate
nation no longer part of the USA, and no longer under it's protection."
So which was it? Was SC and the other states in rebellion or were they
foreign hostile states?

You exclude other possibilities. One of which is independent
non-hostile states.


----------------------snip

Post by Wood
Frankly, the best that can be said is that Lincoln was right because,
and only because he won.

Which is nothing more than a might makes right argument so if the CSA
had won you would argue that slavery was moral. Do you mean for your
morals to be that flexible?

[r***@pdq.net]

Post by Alfred Montestruc

Post by Wood
You are arguing two contradictory points.
" Whatever S. Carolina was after its legislature passed an ordinance
of secession, it was not a "state" in the prior meaning of the word. If
secession was to stand up over time, then it was a seperate and
sovereign nation sharing a border with the USA although with zero
interlocking, binding "legal" treaties or mutual restraints. In other
words, Lincoln with the support of congress - which was provided over
and over again - could declare and make war upon that new entity as
they saw fit. No court was needed for that to happen.
In the view of the USA, the legislators in the seceeding states
committed high treason and so were in a state of rebellion, the
suppression of which the constitution provided authorization. No
different than the whiskey rebellion in the time of G. Washington.
Since the legislature of those states were liable to be arrested
for the crimes of treason and insurrection it could be said that the
seceeding states were now only territories to be administered by the
Federal Government. "
Then Al Montestuc wrote,
"This was not nullification, secession was a whole new animal.
Nullification means violation of the supremacy clause pure and simple.
It does not follow that the supremacy clause should apply to a seperate
nation no longer part of the USA, and no longer under it's protection."
So which was it? Was SC and the other states in rebellion or were they
foreign hostile states?

You exclude other possibilities. One of which is independent
non-hostile states.

Insofaras the territory these "states" would occupy had at one time
been US territory and it was severed without agreement - that itself
defines an extremely hostile relationship. Unless of course the
remainder of the USA had by that time simply given up on the old dream
of an American Nation with a significant role to play in history.
The truth is the southerners knew perfectly well that their little
enterprise was a lethal dart aimed at the heart of what the rest of the
country represented.
Any society that is so much based on slavery and the permanent
subjugation of a class of people is going to be inherently suspicious
of change.
The northerner states by this time were turning into the very
embodiment of permanent, destabilizing change. They reveled in it. So,
harming such a thing was instinctively attractive to men whose notion
of success,even safety, centered around keeping a large portion of the
peoples in their society ignorant of the rest of the world and the
alternative possibilities for living.
Tell us, why were southerners so violently adamant to keep slaves
from knowing how to read?
Leaving aside the relentless backwardness and cruelty of the south;
even if they had been enlightened, secession inevitably challenged the
notion that the US was ever a Nation in the first place. Because it is
gibberish to speak of a nation that is not empowered to defend its
borders or that can suffer the loss of territory without its consent.
There has never been and never will be a nation that forfeits those
rights. Southerners understood that well enough from the start. They
just did not like it, that's all. If they listened to modern day
defenders of their rebellion, they would laugh at their gullibilty.

Post by Alfred Montestruc
----------------------snip

Post by Wood
Frankly, the best that can be said is that Lincoln was right because,
and only because he won.

Which is nothing more than a might makes right argument so if the CSA
had won you would argue that slavery was moral. Do you mean for your
morals to be that flexible?

[Alfred Montestruc]

Post by r***@pdq.net

Post by Alfred Montestruc

Post by Wood
You are arguing two contradictory points.
" Whatever S. Carolina was after its legislature passed an ordinance
of secession, it was not a "state" in the prior meaning of the word. If
secession was to stand up over time, then it was a seperate and
sovereign nation sharing a border with the USA although with zero
interlocking, binding "legal" treaties or mutual restraints. In other
words, Lincoln with the support of congress - which was provided over
and over again - could declare and make war upon that new entity as
they saw fit. No court was needed for that to happen.
In the view of the USA, the legislators in the seceeding states
committed high treason and so were in a state of rebellion, the
suppression of which the constitution provided authorization. No
different than the whiskey rebellion in the time of G. Washington.
Since the legislature of those states were liable to be arrested
for the crimes of treason and insurrection it could be said that the
seceeding states were now only territories to be administered by the
Federal Government. "
Then Al Montestuc wrote,
"This was not nullification, secession was a whole new animal.
Nullification means violation of the supremacy clause pure and simple.
It does not follow that the supremacy clause should apply to a seperate
nation no longer part of the USA, and no longer under it's protection."
So which was it? Was SC and the other states in rebellion or were they
foreign hostile states?

You exclude other possibilities. One of which is independent
non-hostile states.

Insofaras the territory these "states" would occupy had at one time
been US territory and it was severed without agreement - that itself
defines an extremely hostile relationship.

No it does not. That someone does not want to be associated with you
any longer does not make them hostile toward you, let alone extreamly
hostile.

That I quit working for one firm to goto work for another does not mean
I am hostile to anyone, only that in my judgement it is not in my best
interest to continue the relationship.

Your presumption that an agreement on the part of the other states is
somehow needed or proper for a non-hostile secession shows a
presumption of a master-slave relationship where the slave must have
the master's consent to do anything, rather than a relationship amoung
equals where quitting is anyone's right.



----snip

[r***@pdq.net]

Post by Al Montestruc

Post by Will

Post by Al Montestruc
...
Well their is a problem with that. One has to have a cause to take to
court. In this specific case a legal act of a state government or the
federal government is presumed to be legal until or unless it is
challenged in court by someone, this is explicit in the constituton in
Article IV section 1
" Full Faith and Credit shall be given in each State to the public
Acts, Records, and judicial Proceedings of every other State. And the
Congress may by general Laws prescribe the Manner in which such Acts,
Records and Proceedings shall be proved, and the Effect thereof."
See the thing is the the South Carolina legislature passed an act of
secession that was entitled to "full faith and credit" until a
competent court with proper jurisdiction (when a state is a party, and
that state's courts do not dispute the act, the only such court is
SCOTUS) strikes it down.

The full faith and credit clause refers to how one states must view the
acts of another state; it does not address how the federal goverment
must view the actions of a state.

Fair enough. now where does the president get the power to determine
that an act of a state legislature

Whatever S. Carolina was after its legislature passed an ordinance
of secession, it was not a "state" in the prior meaning of the word. If
secession was to stand up over time, then it was a seperate and
sovereign nation sharing a border with the USA although with zero
interlocking, binding "legal" treaties or mutual restraints. In other
words, Lincoln with the support of congress - which was provided over
and over again - could declare and make war upon that new entity as
they saw fit. No court was needed for that to happen.
In the view of the USA, the legislators in the seceeding states
committed high treason and so were in a state of rebellion, the
suppression of which the constitution provided authorization. No
different than the whiskey rebellion in the time of G. Washington.
Since the legislature of those states were liable to be arrested
for the crimes of treason and insurrection it could be said that the
seceeding states were now only territories to be administered by the
Federal Government.
But no one needed the SCOTUS to figure out that the southern states
were either a totally independent set of political entities or US
territory in rebellion - but not both at the same time. And which ever
they were, the courts should have nothing to say about sending an army
to fight them if the POTUS and congress felt like doing so.
If the south had a right to seceed, the USA had no constitutional
restraints against making was against that newly formed hostile
soverign nation. And if they did not have that right (of secession)
then Lincoln had a sworn duty to suppress their efforts. So there was
no reason at all to wait for a court to rule on any of this.



a lawfuis unlawful or unconstitutional?

Post by Al Montestruc
If he ain't got it he ain't got it, SCOTUS would have that power --
nobody else as far as I can see.
Presidential power is discussed in Article II.
http://www.constitution.org/constit_.htm

Post by Will

Post by Al Montestruc
The somebody to take South Carolina to court could have been Lincoln as
POTUS, and if he had done so, I would be all behind his act as that
would have been legal if he had gotten a ruling from SCOTUS that
secession was unconstitutional, war would have been legal and proper.
Much of my take that he was a tyrant is that he failed to do this
simple act. He asserted all on his own without getting a court to
agree that South Carolina's act was unconstitutional and rebellion. He
as president did not have the constitutional power to make such a call,
only SCOTUS does.

He did have the statutory authority to make the call that US law was
being obstructed

What law? No law against secession existed at that time and no SCOTUS
ruling of that time made it unconstitutional. Without such a ruling he
has not a leg to stand on to enforce tax collection or to assert that
south carolina was in the US.

Post by Will
and it was his statutory authority to take steps to
enforce the law.

Like I said -- what law?

[H***@comcast.net]

This right to secede is deduced from the nature of the Constitution,
which, they say, is a compact between sovereign states, who have
preserved their whole sovereignty, and, therefore, are subject to no
superior; that, because they made the compact, they can break it when,
in their opinion, it has been departed from by the other states.
Fallacious as this course of reasoning is, it enlists state pride, and
finds advocates in the honest prejudices of those who have not studied
the nature of our government sufficiently to see the radical error on
which it rests.

The people of the United States formed the Constitution, acting through
the state legislatures in making the compact to meet and discuss its
provisions, and acting in separate conventions when they ratified those
provisions; but the terms used in its construction show it to be a
government in which the people of all the states collectively are
represented. We are ONE PEOPLE in the choice of the President and
Vice-President. Here the states have no other agency than to direct the
mode in which the votes shall be given. The candidates having the
majority of all the votes are chosen. The electors of a majority of
states may have given their votes for one candidate, and yet another
may be chosen. The people, then, and not the states, are represented in
the executive branch.

In the House of Representatives there is this difference, that the
people of one state do not, as in the case of President and
Vice-President, all vote for the same officers. The people of all the
States do not vote for all the members, each state electing only its
own representatives. But this creates no material distinction. When
chosen, they are all representatives of the United States, not
representatives of the particular state from whence they come. They are
paid by the United States, not by the state, nor are they accountable
to it for any act done in the performance of their legislative
functions; and however they may, in practice, as it is their duty to
do, consult and prefer the interests of their particular constituents
when they come in conflict with any other partial or local interest,
yet it is either first and highest duty, as representatives of the
United States, to promote the general good.

The Constitution of the United States, then, forms a government, not a
league; and whether it be formed by compact between the states, or in
any other manner, its character is the same. It is a government in
which all the people are represented, which operates directly on the
people individually, not noon the states. They retained all the power
they did not grant but each state, having expressly parted with so many
powers as to constitute; jointly with the other states, a single
nation; cannot, from that period, possess any right to secede, because
such secession does not break a league, but destroys the unity of a
nation; and any injury to that unity is not only a breach which would
result from the contravention of a compact but it is an offence against
the whole Union. To say that any state may at pleasure secede from the
Union, is to say that the United States are not a nation; because it
would be a solecism to contend that any part of a nation might
dissolve its connection with the other parts, to their [590] injury or
ruin, without committing any offence. Secession, like any other
revolutionary act, may be morally justified by the extremity of
oppression; but to call it a constitutional right, is confounding the
meaning of terms, and can only be done through gross error, or to
deceive those who are willing to assert a right, but would pause before
they made a revolution, or incur the penalties consequent on a failure.

Because the Union was formed by compact, it is said the parties to that
compact may, when they feel themselves aggrieved, depart from it; but
it is precisely because it is a compact that they cannot. A compact is
an agreement or binding obligation. It may, by its terms, have a
sanction or penalty for its breach, or it may not. If it contains no
sanction, it may be broken with no other consequence than moral guilt:
if it have a sanction, then the breach insures the designated or
implied penalty. A league between
independent nations, generally, has no sanction other than a moral one;
or if it should contain a penalty, as there is no common superior, it
cannot be enforced. A government, on the contrary, always has a
sanction, express or implied; and, in our case, it is both necessarily
implied and expressly given. An attempt, by force of arms, to destroy
government, is an offence, by whatever means the constitutional compact
may have been formed; and such government has the right, by the law of
self-defence, to pass acts for
punishing the offender, unless that right is modified, restrained, or
resumed, by the constitutional act. In our system, although it is
modified in the case of treason, yet authority is expressly given to
pass all laws necessary to carry its powers into effect, and, under
this grant, provision has been made for punishing acts which obstruct
the due administration of the laws.

It would seem superfluous to add any thing to show the nature of that
union which connects us; but, as erroneous opinions on this subject are
the foundation of doctrines the most destructive to our peace, I must
give some further development to my views on this subject. No one,
fellow-citizens, has a higher reverence for the reserved rights of the
states than the magistrate who now addresses you. No one would make
greater personal
sacrifices, or official exertions, to defend them from violation; but
equal care must be taken to prevent, on their part, an improper
interference with, or resumption of, the rights they have vested in the
nation. The line has not been so distinctly drawn as to avoid doubts,
in some cases, of the exercise of power. Men of the best intentions and
soundest views may differ in their construction of some parts of the
Constitution; but there are others on which dispassionate reflection
can leave no doubt. Of this nature appears to be the assumed right of
secession.

It rests, as we have seen, on the alleged undivided sovereignty of the
states, and on their having formed, in this sovereign capacity, a
compact which is called the Constitution, from which, because they made
it, they have the right to secede. Both of these positions are
erroneous, and some of the arguments to prove them so have been
anticipated.

The states severally have not retained their entire sovereignty.

It has been shown that, in becoming parts of a nation, not members of a
league, they surrendered many of their essential parts of sovereignty.
The right to make treaties, declare war, levy taxes, exercise exclusive
judicial and legislative powers, were all of them functions of
sovereign power. The states, then, for all these purposes, were no
longer sovereign The allegiance of their citizens was transferred, in
the first instance, to the government of the United States: they became
American citizens, and [591] owed obedience to the Constitution of the
United States, and to laws made in conformity with the powers it vested
in Congress. This last position has not been, and cannot be, denied.
How, then, can that state be said to be sovereign and independent whose
citizens owe obedience to laws act made by it, and whose magistrates
are sworn to disregard those laws when they come in conflict with those
passed by another? What shows conclusively that the states cannot be
said to have reserved an undivided sovereignty, is, that they expressly
ceded the right to punish treason,-not treason against their separate
power, but treason against the United States, Treason is an offence
against sovereignty, and sovereignty must reside with the power to
punish it. But the reserved rights of the states are not less sacred
because they have, for their common interest, made the general
government the depository of these powers.

The unity of our political character (as has been shown for another
purpose)
commenced with its very existence. Under the royal government we had no
separate character: our opposition to its oppressions began as united
colonies. We were the United States under the Confederation; and the
name was perpetuated, and the union rendered more perfect, by the
Federal Constitution. In none of these stages did we consider ourselves
in any other light than as forming one nation. Treaties and alliances
were made in the name of all. Troops were raised for the joint defence.
How, then, with all these proofs that, under all changes of our
position, we had, for designated purposes and defined powers, created
national governments--how is it that the most perfect of those several
modes of union should now be considered as a mere league that maybe
dissolved at pleasure? It is from an abuse of terms. Compact is used as
synonymous with league, although the true term is not employed, because
it would at once show the fallacy of the reasoning. It would not do to
say that our Constitution was only a league, but it is labored to prove
it a compact, (which in one sense it is,) and then to argue that, as a
league is a compact, every compact between nations must of course be a
league, and that from such an engagement every sovereign power has a
right to recede. But it has been shown that, in this sense, the states
are not sovereign, and that, even if they were, and the national
Constitution had been formed by compact, there would be no right in any
one state to
exonerate itself from its obligations.

So obvious are the reasons which forbid this secession, that it is
necessary only to allude to them. The union was formed for the benefit
of all. It was produced by mutual sacrifices of interests and opinions.
can those sacrifices be recalled? Can the states, who magnanimously
surrendered their title to the territories of the west, recall the
grant? Will the inhabitants of the inland states agree to pay the
duties that may be imposed without their assent by those on the
Atlantic or the Gulf, for their own benefit? Shall there be a free port
in one state, and onerous duties in another. No one believes that any
right exists in a single state to involve the other in these and
countless other evils, contrary to the engagements solemnly made. Every
one must see that the other states, in self-defence, must oppose it at
all hazards.

Elliot, Jonathan, The Debates in the Several State Conventions on the
Adoption of the Federal Constitution, as Recommended by the General
Convention at Philadelphia in 1787. Philadelphia: J. B. Lippincott &
Co., 1836-59. 5 v., "President Jackson's Proclamation, of the 10th
December, 1833, concerning the Ordinance of South Carolina, on the
Subject of the Tariff, on the 24th November, 1832," vol. IV, pp
582-592

http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(ed004101))


Bob

Judy and Bob Huddleston
10643 Sperry Street
Northglenn, CO 80234-3612
303.451.6376 ***@comcast.net

"Le sens communn'est pas si commun." Voltaire

[Al Montestruc]

Post by H***@comcast.net
This right to secede is deduced from the nature of the Constitution,
which, they say, is a compact between sovereign states, who have
preserved their whole sovereignty, and, therefore, are subject to no
superior; that, because they made the compact, they can break it when,
in their opinion, it has been departed from by the other states.

It is not breaking an agreement to leave an association. I can quit a
professional organiuzation just by not paying it's dues. The
constitution is and was not broken by secession.

Post by H***@comcast.net
Fallacious as this course of reasoning is, it enlists state pride, and
finds advocates in the honest prejudices of those who have not studied
the nature of our government sufficiently to see the radical error on
which it rests.

I have always held that use of words of negative implication (like
"fallacious" for example) on the person or intellect of the other side,
tend to show the weakness of yours. I think that so does massive
erasure of other people 's arguements to the point that no one can
follow what you are replying to, or to totally ignore the basic
questions the other side raises.

Just my opinion, what do you think Bob?

Post by H***@comcast.net
The people of the United States formed the Constitution, acting through
the state legislatures in making the compact to meet and discuss its
provisions, and acting in separate conventions when they ratified those
provisions; but the terms used in its construction show it to be a
government in which the people of all the states collectively are
represented.

That is not consistant with the plane text of the document.

---quote Article. VII.
The Ratification of the Conventions of nine States, shall be sufficient
for the Establishment of this Constitution between the States so
ratifying the Same.
-----end quote

If we were one people, then why would it only bind those ratifying the
document?

---------quote Amendment IX----------

The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.
-----------end quote-------------------

If this has any meaning at all, then the people have the right to have
a government of their own choice.

-----------quote Amendment X

The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people.
----------------end quote

Note the use of the word "deligated". Deligated power can be
undeligated, ergo the original bodies or people (or their heirs or
assigns) retain the basic power, and refusal to hand back that power on
demand, is to userp it.

The plane text does say "deligated" not "ceeded"

[S Witmer]

Post by Al Montestruc

Post by H***@comcast.net
This right to secede is deduced from the nature of the Constitution,
which, they say, is a compact between sovereign states, who have
preserved their whole sovereignty, and, therefore, are subject to no
superior; that, because they made the compact, they can break it when,
in their opinion, it has been departed from by the other states.

It is not breaking an agreement to leave an association. I can quit a
professional organiuzation just by not paying it's dues.

The Constitution is not a professional organization or a gentleman's
club. It was a framework for government. There is no comparison.

The

Post by Al Montestruc
constitution is and was not broken by secession.

It was indeed, because secession denies the supremacy of the
Constitution that is plainly stated within that same document, but the
pro-secessionists simply cannot grasp that concept.

Post by Al Montestruc

Post by H***@comcast.net
Fallacious as this course of reasoning is, it enlists state pride, and
finds advocates in the honest prejudices of those who have not studied
the nature of our government sufficiently to see the radical error on
which it rests.

I have always held that use of words of negative implication (like
"fallacious" for example) on the person or intellect of the other side,
tend to show the weakness of yours. I think that so does massive
erasure of other people 's arguements to the point that no one can
follow what you are replying to, or to totally ignore the basic
questions the other side raises.
Just my opinion, what do you think Bob?

Post by H***@comcast.net
The people of the United States formed the Constitution, acting through
the state legislatures in making the compact to meet and discuss its
provisions, and acting in separate conventions when they ratified those
provisions; but the terms used in its construction show it to be a
government in which the people of all the states collectively are
represented.

That is not consistant with the plane text of the document.
---quote Article. VII.
The Ratification of the Conventions of nine States, shall be sufficient
for the Establishment of this Constitution between the States so
ratifying the Same.
-----end quote
If we were one people, then why would it only bind those ratifying the
document?

If we weren't one people, why would it require more than a single
state's ratification?

Post by Al Montestruc
---------quote Amendment IX----------
The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.
-----------end quote-------------------
If this has any meaning at all, then the people have the right to have
a government of their own choice.

EXACTLY!!!!!!!! The people, not the bloody states, but the people!
The problem with the pro-secessionist is that they wish to deny the
people as a whole their rights, and instead hand those rights to
minority factions as represented by special interests - the states.

Post by Al Montestruc
-----------quote Amendment X
The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people.
----------------end quote
Note the use of the word "deligated". Deligated power can be
undeligated, ergo the original bodies or people (or their heirs or
assigns) retain the basic power, and refusal to hand back that power on
demand, is to userp it.
The plane text does say "deligated" not "ceeded"

It also says "the people". The people have the power to unmake or
modify the Constitution, not the states individually. Rhode Island or
California cannot amend the Constitution by themselves. It takes a
collective effort of the people as a whole to do so. And if the people
choose to allow secession to be Constitution, it can be done via
Constitutional amendment. Instead, the southern states chose to usurp
the power of the American people as a whole and unilaterally one by one
shatter the supremacy clause.

[Al Montestruc]

Post by S Witmer

Post by Al Montestruc

Post by H***@comcast.net
This right to secede is deduced from the nature of the Constitution,
which, they say, is a compact between sovereign states, who have
preserved their whole sovereignty, and, therefore, are subject to no
superior; that, because they made the compact, they can break it when,
in their opinion, it has been departed from by the other states.

It is not breaking an agreement to leave an association. I can quit a
professional organiuzation just by not paying it's dues.

The Constitution is not a professional organization or a gentleman's
club.

Nor was or is it a suicide pact.

Post by S Witmer
It was a framework for government. There is no comparison.

We disagree. It is and was an agreement between people. The basic
theories are the same.

Post by S Witmer
The

Post by Al Montestruc
constitution is and was not broken by secession.

It was indeed, because secession denies the supremacy of the
Constitution that is plainly stated within that same document,

It was not broken, you just have a problem with the concepts of limited
government and deligated power/authority.

Post by S Witmer
but the
pro-secessionists simply cannot grasp that concept.

Post by Al Montestruc

Post by H***@comcast.net
Fallacious as this course of reasoning is, it enlists state pride, and
finds advocates in the honest prejudices of those who have not studied
the nature of our government sufficiently to see the radical error on
which it rests.

I have always held that use of words of negative implication (like
"fallacious" for example) on the person or intellect of the other side,
tend to show the weakness of yours. I think that so does massive
erasure of other people 's arguements to the point that no one can
follow what you are replying to, or to totally ignore the basic
questions the other side raises.
Just my opinion, what do you think Bob?

Post by H***@comcast.net
The people of the United States formed the Constitution, acting through
the state legislatures in making the compact to meet and discuss its
provisions, and acting in separate conventions when they ratified those
provisions; but the terms used in its construction show it to be a
government in which the people of all the states collectively are
represented.

That is not consistant with the plane text of the document.
---quote Article. VII.
The Ratification of the Conventions of nine States, shall be sufficient
for the Establishment of this Constitution between the States so
ratifying the Same.
-----end quote
If we were one people, then why would it only bind those ratifying the
document?

If we weren't one people, why would it require more than a single
state's ratification?

Because the United States with only one state is a contradiction in
terms.

Post by S Witmer

Post by Al Montestruc
---------quote Amendment IX----------
The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.
-----------end quote-------------------
If this has any meaning at all, then the people have the right to have
a government of their own choice.

EXACTLY!!!!!!!! The people, not the bloody states, but the people!
The problem with the pro-secessionist is that they wish to deny the
people as a whole their rights,

The various referendum electiongs on secession in southern states ring
a bell?

Post by S Witmer
and instead hand those rights to
minority factions as represented by special interests - the states.

Post by Al Montestruc
-----------quote Amendment X
The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people.
----------------end quote
Note the use of the word "deligated". Deligated power can be
undeligated, ergo the original bodies or people (or their heirs or
assigns) retain the basic power, and refusal to hand back that power on
demand, is to userp it.
The plane text does say "deligated" not "ceeded"

It also says "the people".

I see you fail to address the basic point that the word deligated
clealy indicates that the powers can be reclaimed by the states, or the
people of those states which is where it came from in the first place.


The people have the power to unmake or

Post by S Witmer
modify the Constitution, not the states individually.

Agree, but secession is not "unmaking".


---snip

[r***@pdq.net]

Post by Al Montestruc

Post by S Witmer

Post by Al Montestruc

Post by H***@comcast.net
This right to secede is deduced from the nature of the Constitution,
which, they say, is a compact between sovereign states, who have
preserved their whole sovereignty, and, therefore, are subject to no
superior; that, because they made the compact, they can break it when,
in their opinion, it has been departed from by the other states.

It is not breaking an agreement to leave an association. I can quit a
professional organiuzation just by not paying it's dues.

The Constitution is not a professional organization or a gentleman's
club.

Nor was or is it a suicide pact.

Of course it was not a suicide pact. Anyone who wants to leave
the USA was free to do so. They just cannot take with them any land
which they happen to live on.
Ownership of land is stable if either the individual(s) occupying
it have the independent means to defend it or if such ownership is
recognized and supported by the larger society. (Or a combination of
both, but that does not alter where I am headed).
If land is "owned" solely in the sense of its borders being
defended by a sufficient war-gang to hold off all intrusions then I
suppose there are no words or lawyers or courts that matter. Its owners
can, by definition, do with it whatever seems right to them.
When ownership is defined by deeds and precedents which are part of
the matrix of an extended legal system of which the owners participate,
the owners cannot unilaterally declare that their plot is suddenly not
part of that matrix of legality. Almost by definition, there is no
court with the authority to deal with such matters. When the matrix
itself is negated by one partry, there is no law left but the kind that
is ruled on by the size of each sides war-gangs.
It strikes me as childish that southerners in 1860 pretended to
mis-understand this and go on whining about the supposed legality of
negating the legal system itself.
At least he folks in 1776 admitted the truth of what they were
doing.

Post by Al Montestruc

Post by S Witmer
It was a framework for government. There is no comparison.

We disagree. It is and was an agreement between people. The basic
theories are the same.

Post by S Witmer
The

Post by Al Montestruc
constitution is and was not broken by secession.

It was indeed, because secession denies the supremacy of the
Constitution that is plainly stated within that same document,

It was not broken, you just have a problem with the concepts of limited
government and deligated power/authority.

Post by S Witmer
but the
pro-secessionists simply cannot grasp that concept.

Post by Al Montestruc

Post by H***@comcast.net
Fallacious as this course of reasoning is, it enlists state pride, and
finds advocates in the honest prejudices of those who have not studied
the nature of our government sufficiently to see the radical error on
which it rests.

I have always held that use of words of negative implication (like
"fallacious" for example) on the person or intellect of the other side,
tend to show the weakness of yours. I think that so does massive
erasure of other people 's arguements to the point that no one can
follow what you are replying to, or to totally ignore the basic
questions the other side raises.
Just my opinion, what do you think Bob?

Post by H***@comcast.net
The people of the United States formed the Constitution, acting through
the state legislatures in making the compact to meet and discuss its
provisions, and acting in separate conventions when they ratified those
provisions; but the terms used in its construction show it to be a
government in which the people of all the states collectively are
represented.

That is not consistant with the plane text of the document.
---quote Article. VII.
The Ratification of the Conventions of nine States, shall be sufficient
for the Establishment of this Constitution between the States so
ratifying the Same.
-----end quote
If we were one people, then why would it only bind those ratifying the
document?

If we weren't one people, why would it require more than a single
state's ratification?

Because the United States with only one state is a contradiction in
terms.

Post by S Witmer

Post by Al Montestruc
---------quote Amendment IX----------
The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.
-----------end quote-------------------
If this has any meaning at all, then the people have the right to have
a government of their own choice.

EXACTLY!!!!!!!! The people, not the bloody states, but the people!
The problem with the pro-secessionist is that they wish to deny the
people as a whole their rights,

The various referendum electiongs on secession in southern states ring
a bell?

Post by S Witmer
and instead hand those rights to
minority factions as represented by special interests - the states.

Post by Al Montestruc
-----------quote Amendment X
The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people.
----------------end quote
Note the use of the word "deligated". Deligated power can be
undeligated, ergo the original bodies or people (or their heirs or
assigns) retain the basic power, and refusal to hand back that power on
demand, is to userp it.
The plane text does say "deligated" not "ceeded"

It also says "the people".

I see you fail to address the basic point that the word deligated
clealy indicates that the powers can be reclaimed by the states, or the
people of those states which is where it came from in the first place.
The people have the power to unmake or

Post by S Witmer
modify the Constitution, not the states individually.

Agree, but secession is not "unmaking".
---snip

=================================================================
== Moderator's comment: Please start snipping the stuff you aren't replying to.

[S Witmer]

Post by Al Montestruc

Post by S Witmer

Post by Al Montestruc

Post by H***@comcast.net
This right to secede is deduced from the nature of the Constitution,
which, they say, is a compact between sovereign states, who have
preserved their whole sovereignty, and, therefore, are subject to no
superior; that, because they made the compact, they can break it when,
in their opinion, it has been departed from by the other states.

It is not breaking an agreement to leave an association. I can quit a
professional organiuzation just by not paying it's dues.

The Constitution is not a professional organization or a gentleman's
club.

Nor was or is it a suicide pact.

No one said it was. That's what Constitutional amendments are for.
And as pointed out, any individual that felt they could not live under
the Constitution was free to move anywhere they felt was more agreeable
to them.

Post by Al Montestruc

Post by S Witmer
It was a framework for government. There is no comparison.

We disagree. It is and was an agreement between people. The basic
theories are the same.

Post by S Witmer
The

Post by Al Montestruc
constitution is and was not broken by secession.

It was indeed, because secession denies the supremacy of the
Constitution that is plainly stated within that same document,

It was not broken, you just have a problem with the concepts of limited
government and deligated power/authority.

Not at all. But I do understand the definition of "supreme".

Post by Al Montestruc

Post by S Witmer
but the
pro-secessionists simply cannot grasp that concept.

Post by Al Montestruc

Post by H***@comcast.net
Fallacious as this course of reasoning is, it enlists state pride, and
finds advocates in the honest prejudices of those who have not studied
the nature of our government sufficiently to see the radical error on
which it rests.

I have always held that use of words of negative implication (like
"fallacious" for example) on the person or intellect of the other side,
tend to show the weakness of yours. I think that so does massive
erasure of other people 's arguements to the point that no one can
follow what you are replying to, or to totally ignore the basic
questions the other side raises.
Just my opinion, what do you think Bob?

Post by H***@comcast.net
The people of the United States formed the Constitution, acting through
the state legislatures in making the compact to meet and discuss its
provisions, and acting in separate conventions when they ratified those
provisions; but the terms used in its construction show it to be a
government in which the people of all the states collectively are
represented.

That is not consistant with the plane text of the document.
---quote Article. VII.
The Ratification of the Conventions of nine States, shall be sufficient
for the Establishment of this Constitution between the States so
ratifying the Same.
-----end quote
If we were one people, then why would it only bind those ratifying the
document?

If we weren't one people, why would it require more than a single
state's ratification?

Because the United States with only one state is a contradiction in
terms.

That doesn't answer the heart of my question. Ok, why would it require
more than two state's ratification, then?

Post by Al Montestruc

Post by S Witmer

Post by Al Montestruc
---------quote Amendment IX----------
The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.
-----------end quote-------------------
If this has any meaning at all, then the people have the right to have
a government of their own choice.

EXACTLY!!!!!!!! The people, not the bloody states, but the people!
The problem with the pro-secessionist is that they wish to deny the
people as a whole their rights,

The various referendum electiongs on secession in southern states ring
a bell?

And when was the rest of the country allowed to weigh as part of these
conventions? Oh, that's right - they weren't. So the people of South
Carolina, Georgia, etc. decided that they would each unilaterally usurp
the rights of the rest of the US population by holding their own
private little convention, rather than doing it right and going by way
of a Constitutional Amendment.

Post by Al Montestruc

Post by S Witmer
and instead hand those rights to
minority factions as represented by special interests - the states.

Post by Al Montestruc
-----------quote Amendment X
The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people.
----------------end quote
Note the use of the word "deligated". Deligated power can be
undeligated, ergo the original bodies or people (or their heirs or
assigns) retain the basic power, and refusal to hand back that power on
demand, is to userp it.
The plane text does say "deligated" not "ceeded"

It also says "the people".

I see you fail to address the basic point that the word deligated
clealy indicates that the powers can be reclaimed by the states, or the
people of those states which is where it came from in the first place.

You must be reading a different version of the Constitution than I am.
Indeed is says in the very quote you posted above "or to the people."
I see nothing about "or to the people of the states."

Post by Al Montestruc
The people have the power to unmake or

Post by S Witmer
modify the Constitution, not the states individually.

Agree, but secession is not "unmaking".

It is unmaking the Constitution in those areas in which it was formerly
supreme, which is contrary to the supremacy clause - if something is
supreme, how can it be so easily superceded by the mere say-so of a
fraction of the population of only a fraction of the country?

Post by Al Montestruc
---snip

[Cash]

Post by Wood
So which was it? Was SC and the other states in rebellion or were they
foreign hostile states?

----------------------
They were in rebellion.

Post by Wood
If they were states in rebellion, then how was this applicable to the
Militia Act of 1795?

-----------------------
I take it you've never read the Militia Act of 1795, otherwise you
wouldn't have to ask that question.
This was a duely elected and recognized by the

Post by Wood
Federal government, state assembly which under Article IV section 1,
" Full Faith and Credit shall be given in each State to the public
Acts, Records, and judicial Proceedings of every other State. And the
Congress may by general Laws prescribe the Manner in which such Acts,
Records and Proceedings shall be proved, and the Effect thereof."

----------------------------
By Article VI, Clause 3 they were no longer qualified to hold office under
the U.S. Constitution.

Post by Wood
In which case the proper course of action by the Lincoln government
should have been to send the Attorney General to the SCOTUS the day
after swearing in to invalidate the secession ordinance.

-----------------------------
That's not the way the Supreme Court works.
If upheld,

Post by Wood
this alone would have most likely held Virginia, Tennessee, and
Arkansas in the Union. They only seceded after they perceived POTUS
exceeding his rights by invading a member state.

------------------------------
No, it wouldn't, and no, they didn't. They stayed with the Union as long
as there was a chance the crisis could be resolved peacefully. Once it
was clear this wasn't the case, they went with the slave states.

Post by Wood
Fortunately for him, the Tandy Court,

------------------------------
Did they hold their hearings at the local Radio Shack? : )

Post by Wood
Frankly, the best that can be said is that Lincoln was right because,
and only because he won. That was the position of the British
Parliament after Yorktown, and the position of the Confederate officers
and officials after Appomatox Courthouse and Durham Station.

----------------------------------

Frankly, the Constitution prevents unilateral secession from being legal,
the President has an obligation to enforce the laws in all the states, and
the Militia Act gave him the authority to call up the Militia to put down
the rebellion.

Regards,
Cash