The Legality of Seccession in Antebellum America

“Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits them better. This is a most valuable - a most sacred right - a right, which we hope and believe, is to liberate the world.”
-Abraham Lincoln 1848

“The South maintained with the depth of religious conviction that the Union formed under the Constitution was a Union of consent and not of force; that the original States were not the creatures but the creators of the Union; that these States had gained their independence, their freedom, and their sovereignty from the mother country, and had not surrendered these on entering the Union; that by the express terms of the Constitution all rights and powers not delegated were reserved to the States; and the South challenged the North to find one trace of authority in that Constitution for invading and coercing a sovereign State.-the one for liberty in the union of the States, the other for liberty in the independence of the States.”
-John B Gordon Confederate General Reminiscences of the Civil War

The right to self govern is maybe the most fundamental American right there is. It is what led to the revolution. America prior to 1860 maintained a confederation of sovereign states. These states were self governing and independent. The right to succession has been a fundamental right of sovereign states in American history. It has been more common of northern states in America prior to 1860, to discuss or threatened succession. Lincoln turned history on its head and declared the nation created the states and states had no right to leave the union. He also declared the entire people [not the states simple democracy] created the union.

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government” -Declaration of Independence

The declaration of Independence says “These colonies are, and ought to be free and independent States.” The deceleration is itself a succession document. When the revolution ended the king of England made a peace treaty with each and every state, not with one American nation. Under the articles of confederation article 1 section 2. “Each state retains its sovereignty freedom and Independence.” This is at odds with Lincolns view, but even so, some will say the peoples of the states gave up sovereignty when they ratified the Constitution.

"The Union was formed by the voluntary agreement of the states; and these, in uniting together, have not forfeited their nationality, nor have they been reduced to the condition of one and the same people. If one of the states chooses to withdraw from the compact, it would be difficult to disapprove its right of doing so, andthe Federal Government would have no means of maintaining its claims directly either by force or right.
-Alexis de Tocqueville Democracy in America

The first draft of the preamble to the constitution read “we the people of the states of New Hampshire, Massachusetts, Rhode island etc.. when they realized not all states might adopt it, they left out the states to ratify as they chose to. The constitution was than ratified by the states, not the American people. The self governing sovereign people of the individual states appointed representative from each state to ratify the constitution. The states existed prior to and created the constitution out of their own free will. In federalist #39 James Madison “The father of the constitution” said the constitution was ratified by the people “Not as individuals composing one entire nation, but as composing the distinct and independent states to which they respectively belong” “states were considered a sovereign body, independent of all others, and only bound by its own voluntary act.” Virginia, New York and Rhode Island reserved the right to succeed from the union before ratifying the constitution.

“The laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding.”
-New York’s ratifying convention

They also declared the right for other states, the others assumed this was the case. In the constitution “united states” is always in plural, not the way we use it today as to refer to one nation. When the constitution was formed, the states had to seceded from the articles of confederation to do so. Federally founded West Point taught the right to secession in its textbook “a view of the constitution of the united states of america by William Rawle.” The constitution nowhere outlaws secession. The constitution established where the federal government has been delegated authority. The rest is reserved to the states. Secession than is a state issue. Nothing is authorized to the states in the constitution [secession or otherwise] since the purpose of the constitution is federal powers.

“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”
-10th amendment U.S Constitution

Thomas Jefferson

“Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself...each party has equal right to judge for itself”
-Kentucky and Virginia Resolutions of 1798 written by Thomas Jefferson and James Madison

[I]“Sever ourselves from the union we so much value, rather than give up the rights of self government which we have reserved, and in which alone we see liberty, safety and happiness”
-Thomas Jefferson to James Madison 1799

Hartford convention

At the convention the New England states debated whether they should leave the union. No one questioned the legality, simply if it should be done. In 1801 Thomas Jefferson as president said “If there be any among us who would wish to dissolve this union or to change its republican form, let them stand undisturbed.” Jefferson said alittel rebellion is “a medicine necessary for the sound health of government.” When as president the New England federalist were considering succession Jefferson said “If any state in the union will declare that it prefers separation...let us separate”

Other Founders

“But the indissoluble link of union between the people of the several states of this confederated nation, is after all, not in the right, but in the heart. If the day should ever come, (may Heaven avert it,) when the affections of the people of these states shall be alienated from each other; when the fraternal spirit shall give away to cold indifference, or collisions of interest shall fester into hatred, the bands of political association will not long hold together parties no longer attracted by the magnetism of conciliated interests and kindly sympathies; and far better will it be for the people of the disunited states, to part in friendship from each other, than to be held together by constraint. Then will be the time for reverting to the precedents which occurred at the formation and adoption of the Constitution, to form again a more perfect union, by dissolving that which could no longer bind, and to leave the separated parts to be reunited by the law of political gravitation to the centre”
-John Quincy Adams Northern federalist 1839

Northern federalist Daniel Webster said in 1851 that if the north would not comply with the fugitive slave law, “The south would no longer be bound to observe the compact. A bargain can not be broken on one side, and still bind the other side”

“The thirteen states are thirteen sovereign bodies”
-Oliver Ellsworth

“The states are nations”
-Daniel Webster Commentaries on the Constitution

“If the union was formed by the accession of states then the union may be dissolved by the secession of states”
-Daniel Webster U.S senate Feb 15 1833

“The attributes of sovereignty are now enjoyed by every state in the union”
-Alexander Hamilton

“The first thing I have at heart is American liberty, the second thing is American union
-Patrick Henry

“Had Buchanan in 1860 sent armed forces to prevent the nullification of the fugitive slave law, as Andrew Jackson thretned to do so in 1833, there would have been a secession of fifteen northern states instead of thirteen southern states. Had the democrats won in 1860 the northern states would have been the seceding states not the southern.”
- George Lunt of Massachusetts Origin of the Late war


By 1860 clearly the southern states saw secession as legal but so did most in the north and many leading newspapers. West Virginia during the civil war seceded from the confederacy and the state of Virginia. f

“the leading and most influncial papers of the union believe that any state of the union has a right to secede”
-Davenport Iowa Democrat and news 11/17/60

“opposing secession changes the nature of government “from a voluntary one, in which the people are sovereigns, to a despotism were one part of the people are slaves”
- New York Journal of commerce 1/12/61

“The great principles embodied by Jefferson in the declaration is... that governments derive their just powers from the consent of the governed” Therefore if the southern states wish to secede, “they have a clear right to do so”
-New York tribune 2/5/61

Secession is “the very germ of liberty...the right of secession inheres to the people of every sovereign state”
-Kenosha Wisconsin Democrat 1/11/61

Treason

Article 3 section 3 of the constitution says
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

This is what Abraham Lincoln did in the American civil war, he waged war against the southern states.

“To coerce the states is one of the maddest projects that was ever devised... a complying state at war with a non complying state. Congress marching the troops of one state into the bosom of another? Here is a nation at war with itself. Can any reasonable man be well disposed toward a government which makes war and carnage the only means of supporting itself- a government that can exists only by the sword”. -Alexander Hamilton Northern federalist

“Before the war a union a collection of states... after the war we began to speak of a nation”
-Ken Burns

But southerns would also say the south was not leaving the original American republic, but establishing it. That is why before the war the south often thought the north should succeed.

"All that the South has ever desired was the Union as established by our forefathers should be preserved and that the government as originally organized should be administered in purity and truth."
Gen. Robert E. Lee Quoted in The enduring Relevance of Robert E Lee

Also being called a traitor is not automatically a bad thing, our nations greatest heroes IMO were traitors. The declaration of Independence was a secession document of sovereign states choosing separation from England's tyrannical government. From Great Britans point of view, they were the loyalist and Americans the traitors. The difference is the north won the war. Had America lost its war for independence, they would have taught the founders as traitors and rebels in textbooks in America. During the revolution “loyalist” like Benedict Arnold were the traitors.

“Rebellion if successful, is sacred, if not, is treason”
Proverb

There is no provision in the Constitution for a state to leave the union. No state would have any chance of leaving without the consent of the federal government and the rest of the states.... or by rebellion.

Texas v. White:

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When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.

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Originally Posted by Xiahou

There is no provision in the Constitution for a state to leave the union. No state would have any chance of leaving without the consent of the federal government and the rest of the states.... or by rebellion.

Texas v. White:

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Notice your court case comes after the civil war.My thread is The Legality of Seccession in Antebellum America. The Constitution is delegated powers from the states themselves.

“The powers delegated by the proposed Constitution to the federal government are few and defined.”
-James Madison Federalist Papers #45

"The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first."
-Thomas Jefferson

“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”
-10th amendment U.S Constitution


The Constitution is only what authority has been delegated that the federal can speak on. It has not been delegated authority to speak on secession as that is not its function/authority. So secession belongs to the states.

Nay.

James Madison:

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I partake of the wonder that the men you name should view secession in the light
mentioned. The essential difference between a free Government and Governments
not free, is that the former is founded in compact, the parties to which are mutually and
equally bound by it. Neither of them therefore can have a greater fight to break off from the
bargain, than the other or others have to hold them to it. And certainly there is nothing in
the Virginia resolutions of —98, adverse to this principle, which is that of common sense
and common justice. The fallacy which draws a different conclusion from them lies in
confounding a single party, with the parties to the Constitutional compact of the United
States. The latter having made the compact may do what they will with it. The former
as one only of the parties, owes fidelity to it, till released by consent, or absolved by an
intolerable abuse of the power created. In the Virginia Resolutions and Report the plural
number, States , is in every instance used where reference is made to the authority which
presided over the Government. As I am now known to have drawn those documents,
I may say as I do with a distinct recollection, that the distinction was intentional. It was
in fact required by the course of reasoning employed on the occasion. The Kentucky
resolutions being less guarded have been more easily perverted. The pretext for the
liberty taken with those of Virginia is the word respective , prefixed to the “rights” &c to
be secured within the States. Could the abuse of the expression have been foreseen
or suspected, the form of it would doubtless have been varied. But what can be more
consistent with common sense, than that all having the same rights &c, should unite in
contending for the security of them to each.
It is remarkable how closely the nullifiers who make the name of Mr. Jefferson the pedestal
for their colossal heresy, shut their eyes and lips, whenever his authority is ever so clearly
and emphatically against them. You have noticed what he says in his letters to Monroe
& Carrington Pages 43 & 203, vol. 2,1 with respect to the powers of the old Congress
to coerce delinquent States, and his reasons for preferring for the purpose a naval to
a military force; and moreover that it was not necessary to find a right to coerce in the
Federal Articles, that being inherent in the nature of a compact. It is high time that the
claim to secede at will should be put down by the public opinion; and I shall be glad to see
the task commenced by one who understands the subject.

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I find that any argument given for a legality of secession is an argument for the use of main force against secessionists. Secessionists are loath to admit that there is no cake for them.

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Originally Posted by Montmorency

Nay.

James Madison:

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nay

“James Madison spoke against the idea of nullification.”

More sophisticated opponents think they have a trump card in James Madison’s statements in 1830 to the effect that he never intended, in the Virginia Resolutions or at any other time, to suggest that a state could resist the enforcement of an unconstitutional law. Anyone who holds that he did indeed call for such a thing has merely misunderstood him. He was saying only that the states had the right to get together to protest unconstitutional laws.

This claim falls flat. In 1830 Madison did indeed say such a thing, and pretended he had never meant what everyone at the time had taken him to mean. Madison’s claim was greeted with skepticism. People rightly demanded to know: if that was all you meant, why even bother drafting such an inane and feckless resolution in the first place? Why go to the trouble of passing solemn resolutions urging that the states had a right that absolutely no one denied? And for heaven’s sake, when numerous states disputed your position, why in the Report of 1800 did you not only not clarify yourself, but you actually persisted in the very view you now deny and which everyone attributed to you at the time? Madison biographer Kevin Gutzman (see James Madison and the Making of America, St. Martin’s, 2012) dismantled this toothless interpretation of Madison’s Virginia Resolutions in “A Troublesome Legacy: James Madison and ‘The Principles of ’98,’” Journal of the Early Republic 15 (1995): 569-89. Judge Abel Upshur likewise made quick work of this view in An Exposition of the Virginia Resolutions of 1798, excerpted in my book.

The elder Madison, in his zeal to separate nullification from Jefferson’s legacy, tried denying that Jefferson had included the dreaded word in his draft of the Kentucky Resolutions. Madison had seen the draft himself, so he either knew this statement was false or was suffering from the effects of advanced age. When a copy of the original Kentucky Resolutions in Jefferson’s own handwriting turned up, complete with the word “nullification,” Madison was forced to retreat.

In summary, then, (1) the other state legislatures understood Madison in 1798 as saying precisely what Madison later tried to deny he had said; (2) Madison did not correct this alleged misunderstanding when he had the chance to in the Report of 1800 or at any other time during those years; and (3) the text of the Virginia Resolutions clearly indicates that each state was “duty bound” to maintain its constitutional liberties within its “respective” territory, and hence Madison did indeed contemplate action by a single state (rather than by all the states jointly), as supporters and opponents alike took him to be saying at the time.
https://www.libertyclassroom.com/objections/

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Originally Posted by Montmorency

I find that any argument given for a legality of secession is an argument for the use of main force against secessionists. Secessionists are loath to admit that there is no cake for them.

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I find that any argument given for the illegality of secession is an argument for the use of main force against secessionists. Conformist anti self governmentist are loath to admit that there is no cake for them.

I think this may help as well, Madison contributes.

The History of American State Sovereignty in Antebellum America
http://www.norbsoftdev.net/forum/off...bellum-america

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In summary, then, (1) the other state legislatures understood Madison in 1798 as saying precisely what Madison later tried to deny he had said; (2) Madison did not correct this alleged misunderstanding when he had the chance to in the Report of 1800 or at any other time during those years; and (3) the text of the Virginia Resolutions clearly indicates that each state was “duty bound” to maintain its constitutional liberties within its “respective” territory, and hence Madison did indeed contemplate action by a single state (rather than by all the states jointly), as supporters and opponents alike took him to be saying at the time.

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Madison and Jefferson made statements on the subject of state governments judging the constitutionality of federal law and executive application. Later, these were used in the arguments of secessionists, which Madison countered by pointing out that nullification has nothing to do with secession. That whole post of yours was without substance.

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I find that any argument given for the illegality of secession is an argument for the use of main force against secessionists.

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So you admit that secessionists make themselves as renegades against mankind?

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Conformist anti self governmentist are loath to admit that there is no cake for them.

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It's dirty work, but the law demands it.

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Originally Posted by Montmorency

Madison and Jefferson made statements on the subject of state governments judging the constitutionality of federal law and executive application. Later, these were used in the arguments of secessionists, which Madison countered by pointing out that nullification has nothing to do with secession. That whole post of yours was without substance.



So you admit that secessionists make themselves as renegades against mankind?



It's dirty work, but the law demands it.

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I dont disagree but both rely on sovereignty witch madison supported. Why did the Virginia [Madison native state] reserve the right to leave the union and NY at the convention?


“Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits them better. This is a most valuable - a most sacred right - a right, which we hope and believe, is to liberate the world.”
-Abraham Lincoln 1848

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government”
-Declaration of Independence


If believing the above is " renegades against mankind?" count me in. I would say those that hold some "law" [no idea what laws as no laws say you cant secede or self govern in antebellum america] above mankind, is the true renegade to mankind.


“the leading and most influncial papers of the union believe that any state of the union has a right to secede”
-Davenport Iowa Democrat and news 11/17/60

“opposing secession changes the nature of government “from a voluntary one, in which the people are sovereigns, to a despotism were one part of the people are slaves”
- New York Journal of commerce 1/12/61

“The great principles embodied by Jefferson in the declaration is... that governments derive their just powers from the consent of the governed” Therefore if the southern states wish to secede, “they have a clear right to do so”
-New York tribune 2/5/61

Secession is “the very germ of liberty...the right of secession inheres to the people of every sovereign state”
-Kenosha Wisconsin Democrat 1/11/61

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Why did the Virginia [Madison native state] reserve the right to leave the union and NY at the convention?

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The "right to withdraw" was consistently argued as being against the languages and transfer of sovereignty shown in the Constitution, especially by such figures as James Madison, John Jay and Alexander Hamilton - indeed, New York never did reserve in its Constitution a right to withdraw, partly due to their opposition. I don't know where you got that it did. Neither did Rhode Island or Virginia.

The sovereignty of the people is not a sovereignty of a State.

As Marshall pointed out in Maryland vs. McCullough:

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It is true, they assembled in their several states–and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass. Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments.

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Furthermore, if we were to imagine that state constitutions had gone so far as to include some words like, "We reserve the right to leave the Union on any conditions and under any circumstances we wish, regardless of any external factor", then we would need to consider why it was these specific states and no others, and whether it speaks to a wider right to withdrawal, is impertinent to any such, or even whether such conditions would simply be void and ignored under the federal Constitution. Going here does not lend your position support.

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Originally Posted by Montmorency

The "right to withdraw" was consistently argued as being against the languages and transfer of sovereignty shown in the Constitution, especially by such figures as James Madison, John Jay and Alexander Hamilton - indeed, New York never did reserve in its Constitution a right to withdraw, partly due to their opposition. I don't know where you got that it did. Neither did Rhode Island or Virginia.

The sovereignty of the people is not a sovereignty of a State.

As Marshall pointed out in Maryland vs. McCullough:



Furthermore, if we were to imagine that state constitutions had gone so far as to include some words like, "We reserve the right to leave the Union on any conditions and under any circumstances we wish, regardless of any external factor", then we would need to consider why it was these specific states and no others, and whether it speaks to a wider right to withdrawal, is impertinent to any such, or even whether such conditions would simply be void and ignored under the federal Constitution. Going here does not lend your position support.

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Please support where the Constitution says the sovereignty is transferred to the federal.

“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”
Virginia

“The laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding.”
-New York’s ratifying convention

“That the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness:- That the rights of the States respectively, to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same; and that those clauses in the said constitution which declare that Congress shall not have or exercise certain powers, do not imply, that Congress is entitled to any powers not given by the said constitution, but such clauses are to be construed as exceptions to certain specified powers, or as inserted merely for greater caution.”
Rhode Island

You answered your own objection. The sovereignty lies with the people of the respected states.
In federalist #39 James Madison “The father of the constitution” said the constitution was ratified by the people “Not as individuals composing one entire nation, but as composing the distinct and independent states to which they respectively belong”


I think your last question is answered under my. This was an assumed case, since the states were sovereign and the 10th amendment makes clear the Constitution is delegated powers and the federal can do no more.

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Please support where the Constitution says the sovereignty is transferred to the federal.

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Did you not read my post? The sovereignty resides in the body politic, not in the individual States. Both the states and the federal government derive whatever rights they have under the Constitution from this body.

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The sovereignty lies with the people of the respected states.

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As I specifically pointed out, the sovereignty lies with "the people", who are themselves divided amongst the States. This is distinct from the people of any one state.

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since the states were sovereign and the 10th amendment makes clear the Constitution is delegated powers and the federal can do no more.

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Wrong. The 10th Amendment limits the powers of the States as much as the powers of the federal government. Please stop this error of portraying the Constitution as a carbon copy of the Articles of Confederation.

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Originally Posted by Montmorency

Did you not read my post? The sovereignty resides in the body politic, not in the individual States. Both the states and the federal government derive whatever rights they have under the Constitution from this body.



As I specifically pointed out, the sovereignty lies with "the people", who are themselves divided amongst the States. This is distinct from the people of any one state.



Wrong. The 10th Amendment limits the powers of the States as much as the powers of the federal government. Please stop this error of portraying the Constitution as a carbon copy of the Articles of Confederation.

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I did and you ignored the founders view and Madison. I shall repost sir.

In federalist #39 James Madison “The father of the constitution” said the constitution was ratified by the people “Not as individuals composing one entire nation, but as composing the distinct and independent states to which they respectively belong”

it seems your running out of support for your case, you cannot provide any just claims. 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.

I guess I fail to see what the issue is. It's cute and all to try to cherrypick quotes but no one made it out really pre Civil War. So what's this argument for now anyways?

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Originally Posted by total relism

I did and you ignored the founders view and Madison. I shall repost sir.

In federalist #39 James Madison “The father of the constitution” said the constitution was ratified by the people “Not as individuals composing one entire nation, but as composing the distinct and independent states to which they respectively belong”

it seems your running out of support for your case, you cannot provide any just claims. 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.

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Wrong again. If you read other writings of Madison, such at least as have been provided here, then you would at least have the good grace to be confused. But there is no contradiction, as the ratification of the Constitution to united the States under one sovereign government must of course take place by the division into the peoples of the respective states, since that is the very thing the Constitution seeks to displace. Once a State has ratified the Constitution, it has given in its sovereignty,countenanced precisely because the transfer of sovereignty does not also abrogate the individual powers that can be exercised by a state for the sake of its own government. That's where the 10th Amendment is relevant.

The Tenth Amendment is a specification of the Constitution's Article I, Section 8, affirming that the states have in their power that which is not circumscribed by the Constitution while powers not directly provided for the Federal government must be individually expressed and expanded within the limits of the legislature. It reminds the states that their own scope is limited by the Constitution, and describes what it takes for the federal government to take new powers. It does not explicitly circumscribe any current or future powers of the federal government, which is what the Articles of Confederation did.

And now since we're discussing sovereignty itself let us not lose track of the original fallacy, that of "secession". Secession has no link to legal or political sovereignty, and to suggest so or predicate a discussion on the assumption, is doomed for invalidity.

There is no legality in the world or in possibility that could either describe or circumscribe, provide for or prevent, a split in a political unit. Such a justification or prohibition could only come from non-legal sources, be it philosophy, morality, or any concrete expedience. The only argument for or against secession can be the fact itself, not any document.

However much we may continue to discuss the nature of sovereignty under American law here, never consider it any sort of bearing on the subject of secession in principle or in history.

Secession is not a legal matter, except retroactively.

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Originally Posted by Montmorency

And now since we're discussing sovereignty itself let us not lose track of the original fallacy, that of "secession". Secession has no link to legal or political sovereignty, and to suggest so or predicate a discussion on the assumption, is doomed for invalidity.

There is no legality in the world or in possibility that could either describe or circumscribe, provide for or prevent, a split in a political unit. Such a justification or prohibition could only come from non-legal sources, be it philosophy, morality, or any concrete expedience. The only argument for or against secession can be the fact itself, not any document.

However much we may continue to discuss the nature of sovereignty under American law here, never consider it any sort of bearing on the subject of secession in principle or in history.

Secession is not a legal matter, except retroactively.

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It is not illegal, therefore its legal by a free people.

“Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits them better. This is a most valuable - a most sacred right - a right, which we hope and believe, is to liberate the world.”
-Abraham Lincoln 1848


“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government”
-Declaration of Independence

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Originally Posted by Montmorency

Wrong again. If you read other writings of Madison, such at least as have been provided here, then you would at least have the good grace to be confused. But there is no contradiction, as the ratification of the Constitution to united the States under one sovereign government must of course take place by the division into the peoples of the respective states, since that is the very thing the Constitution seeks to displace. Once a State has ratified the Constitution, it has given in its sovereignty,countenanced precisely because the transfer of sovereignty does not also abrogate the individual powers that can be exercised by a state for the sake of its own government. That's where the 10th Amendment is relevant.

The Tenth Amendment is a specification of the Constitution's Article I, Section 8, affirming that the states have in their power that which is not circumscribed by the Constitution while powers not directly provided for the Federal government must be individually expressed and expanded within the limits of the legislature. It reminds the states that their own scope is limited by the Constitution, and describes what it takes for the federal government to take new powers. It does not explicitly circumscribe any current or future powers of the federal government, which is what the Articles of Confederation did.

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This is where you sir leave history and me behind. Not only is that refuted in my op, but here as well.

State Rights

“Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself...each party has equal right to judge for itself”
-Kentucky and Virginia Resolutions of 1798 written by Thomas Jefferson and James Madison

"The Union was formed by the voluntary agreement of the states; and these, in uniting together, have not forfeited their nationality, nor have they been reduced to the condition of one and the same people. -Alexis de Tocqueville Democracy in America

While it was not the universal opinion of the founders, it was the majority that dominated politics in early American life. Known often as Jeffersonian democracy that flowed from the state ratification conventions, especially the Virginian ratification convention. Other times called the compact theory of the union. This political stance dominated with Jefferson first election [his re-election in 1804 was the most lopsided in American history] when the issue of the union came up with the Alien and sedition acts. The nationalist view held by men like Danial Webster, Joseph Story and John Jay, was the minority view. The compact view of Jefferson and James Madison, the “principles of 98” expressed in the Virginia and Kentucky resolution of 1798. This view [that went back to even before the ratification conventions] would dominate the political landscape for decades, and the Virginia conventions understanding of the union would dominate American life before the civil war.

"The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first."
-Thomas Jefferson

Today the federal government has the authority over all peoples and states. Everything is subject to its authority. This is not how it has always been or intended by the founders. The federal government only had power and authority that was delegated it by the states. That authority was only within the limits specifically stated in the Constitution.

“The powers delegated by the proposed Constitution to the federal government are few and defined.”
-James Madison Federalist Papers #45


The states were to govern the rest.

“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”
-10th amendment U.S Constitution

“Everything not expressly mentioned will be presumed to be purposely omitted”
-James Wilson Pennsylvanian Ratification convention

The powers that the federal government had, were not Superior to the states, but inferior. Since deriving its delegated powers from the states, who existed before the constitution.

“Our government is not to be maintained or our union preserved by invasions of the powers of the several states... its true strength consists in leaving individuals and states as much as possible to themselves ..not in binding the states more closely to the center”
-President Andrew Jackson

Even Federalist at the state conventions assured the people that if the federal overstepped its clear delegated powers, these actions were unconstitutional and void.

“no legislative act, therefore contrary to the constitution, can be valid”
-Alexander Hamilton federalist #78

“Congress cannot assume any other powers than those expressly given them. Powers of congress are all defined and clearly laid down. So for they may go, but no further”
-Samuel Johnston North Carolina convention

“Every power, jurisdiction, and right which is not by the said constitution clearly delegated to the united states of America, or or of the government thereof remains to the people of the several states, or to the representatives state governments”
-New York ratification convention

Sovereignty lied with we the people represented by elected officials of our states.

“The attributes of sovereignty are now enjoyed by every state in the union”
-Alexander Hamilton

“The thirteen states are thirteen sovereign bodies”
-Oliver Ellsworth


States Rights in Action

“The duty of state governments, to protect themselves from encroachments”
-Joseph Desha Kentucky Governor 1825

“The true barriers of our liberty...are the state governments”
-Thomas Jefferson

It was the states in their sovereignty that did almost all the governing “State authority was the rule, federal the exception.” As president Pierce said in 1855 “the power is in states alone.” The federal government had no right to exercise powers not specifically delegated to it in the constitution. If the federal government assumed such powers, its acts could be declared unconstitutional by the states. States could decide the constitutionality of laws passed by Congress. At North Carolina’s ratifying convention, James Iredell told the delegates that when “Congress passes a law consistent with the Constitution, it is to be binding on the people. If Congress, under pretense of executing one power, should, in fact, usurp another, they will violate the Constitution.” In December 1787 Roger Sherman observed that an “excellency of the constitution” was that “when the government of the united States acts within its proper bounds it will be the interest of the legislatures of the particular States to Support it, but when it leaps over those bounds and interferes with the rights of the State governments they will be powerful enough to check it.”

“Unconstitutional [laws] void and of no effect. It is the right and the duty of the several states to nullify those acts”
-John Breckenridge Kentucky

“Sir they [the states] ought not to submit, they would deserve the chains which there masters are forging for them, if they did not resist”
-Edward Livingston NY house of representatives

Before Lincoln states determined their own outcome. They were not forced by an all powerful authoritative federal government to comply to its standards. States could nullify unconstitutional rulings and laws from the federal government. One of the first times the federal government, in this case the supreme court, tried to force itself on a state, in the court case Chisholm V Georgia 1793. The state of Georgia declared that to submit to a federal court would destroy the “Retained sovereignty of the state.” The federalist supreme court voted 4-1 that Georgia must comply with the federal court ruling. So the Georgia legislature passed a bill that any federal agent in the state that attempted to enforce the federal supreme court ruling, should be hanged. So no federal agent dared enter the state. This resulted in the passing of the 11th amendment as congress itself supporter state sovereignty against the supreme court. In 1850 a dispute in Texas almost led to secession of Texas. The fight was over a land claim between the federal government and the state of Texas. Texas called for force to be used to maintain its integrity. South Carolina nullified the tariffs of 1828 and 1832. States rights were more common in the north, descendants of the federalist party some examples are below.

“The solemn duty of the state governments...to interpose”
-Federalist/ Nationalist Daniel Webster

The Embargo of 1807-1809

Thomas Jefferson as president declared an embargo on all American ports. Massachusetts nullified the federal law and replied

“While this State maintains its sovereignty and independence, all the citizens can find protection against outrage and injustice in the strong arm of the State government..not legally binding on the citizens of this State.”

Connecticut responded with the resolution of the general Assembly

“Resolved, That to preserve the Union, and support the constitution of the United States, it becomes the duty of the Legislatures of the States, in such a crisis of affairs, vigilantly to watch over, and vigorously to maintain, the powers not delegated to the United States, but reserved to the States respectively, or to the people; and that a due regard to this duty, will not permit this Assembly to assist, or concur in giving effect to the aforesaid unconstitutional act, passed, to enforce the Embargo”

The war of 1812

When Connecticut was called to bring out its militia to guard the cost they replied

"It must not be forgotten, that the state of Connecticut is a FREE SOVEREIGN and INDEPENDENT state; that the United States are a confederacy of states; that we are a confederated and not a consolidated republic. The governor of this state is under a high and solemn obligation, “to maintain the lawful rights and privileges thereof, as a sovereign, free and independent state,” as he is “to support the constitution of the United States,” and the obligation to support the latter, imposes an additional obligation to support the former."

and the Governor stated

“It is their right, [states] it becomes there duty, to interpose their protecting shield between their rights and liberty of the people, and the assumed power of the general government”
-Governor Jonathan Trumbull Connecticut

1813 Embargo

In response to the embargo Massachusetts General Court approved

"A power to regulate commerce is abused, when employed to destroy it; and a manifest and voluntary abuse of power sanctions the right of resistance, as much as a direct and palpable usurpation. The sovereignty reserved to the states, was reserved to protect the citizens from acts of violence by the United States, as well as for purposes of domestic regulation. We spurn the idea that the free, sovereign and independent State of Massachusetts is reduced to a mere municipal corporation, without power to protect its people, and to defend them from oppression, from whatever quarter it comes. Whenever the national compact is violated, and the citizens of this State are oppressed by cruel and unauthorized laws, this Legislature is bound to interpose its power, and wrest from the oppressor its victim."

In 1820, when Ohio was fighting against the unconstitutional Bank of the United States, it recognized and approved "the doctrines asserted by the Legislatures of Virginia and Kentucky, in their resolutions of November and December, 1798, and January 1800 — and do consider that their principles have been recognized and adopted by a majority of the American people"

Fugitive slave laws

Many northern states nullified the fugitive slave laws or passed liberty laws that nullified the federal law. Wisconsin nullified the law supreme court law.

“Resolved, That this assumption of jurisdiction by the federal judiciary, in the said case, and without process, is an act of undelegated power, and therefore without authority, void, and of no force. Resolved, That the government, formed by the Constitution of the United States was not the exclusive or final judge of the extent of the powers delegated to itself; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress... that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism, since the discretion of those who administer the government, and not the Constitution, would be the measure of their powers; that the several states which formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a positive defiance of those sovereignties, of all Unauthorized acts done or attempted to be done under color of that instrument, is the rightful remedy.”

States rights held the federal government in check and held it to only what it was granted to do in the constitution. So from the American revolution until The civil war, you had the same constitutional republic. The states doing the self governing in there state sovereignty.

From Union to a Consolidated Nation

”The several states bound loosely in a federal union under a weak central government into a new nation forged by the fires of war”
-James McPherson Battle cry of Freedom Oxford U Press

“In saving the union, I have destroyed the Republic.”
-Abraham Lincoln

“Before the war a union a collection of states... after the war we began to speak of a nation”
-Ken Burns

“Before the war, it was said "the United States are." Grammatically, it was spoken that way and thought of as a collection of independent states. And after the war, it was always "the United States is," as we say today without being self-conscious at all. And that sums up what the war accomplished. It made us an "is."
-Historian Shelby Foote author of “The Civil War: A Narrative.”

After the civil war meaningful states rights ended, and our constitutional republic along with it. Lincoln and the civil war began a new American empire that said states and the people, no longer decided their fate, were no longer sovereign, and no longer self governing people [a principle the American revolution was fought for] but were now subject to the almighty federal government. Who was willing to force the people into its mold, or destroy them. Walt Witman said the result of the war was “Consent to our mandates or be shot.” A major transformation from the founders view that “governments are instituted among men” to protects man's unalienable God given rights and liberty.

The war “Destroyed voluntary union of the founders and made all Americans servants rather than masters of their own government... transformed the American government from a constitutional republic to a consolidated empire”
-Thomas Dilorenzo author of The Real Lincoln and Lincoln Unmasked

Lincolns northern opponent Stephen Douglas said of Lincolns political goals as wanting to impose “On the nation a uniformity of local laws and institutions and a moral homogeneity dictated by a central government” That election was said by historians to be a contest between “One consolidated empire [ Federalist/Whigs] and “confederacy of sovereign and equal states of Jefferson and Jackson”, “Lincoln goes for consolidation and uniformity in our government while I go for maintaining the confederation of the sovereign states.” said Douglas.

“State sovereignty died at Appomattox”
-Supreme Court Justice Salmon P Chase 1864-73

“States rights, which prior to 1860 had been an important northern belief as southern. Were overturned by Lincolns war
-Dean Sprague Freedom under Lincoln

Changes to the Constitution

The civil war marked the beginnings of an all powerful federal government in America, something the founding fathers did all in their powers to stop. With the Lincoln administration and with the passing of the 14th15th amendment soon after the war. We moved further to a more centralized government and denied states sovereignty. It destroyed the concept of delegated and reserved powers, gone was the concept of government authority voluntary from the people. It changed America from a constitution of states to promote common interest, to a national cohesion controlling states by a centralized government. In antebellum America each state acted for the most part as its own country. People saw themselves as citizens of the state first, country second. Under Lincoln it is said the reverse happened. Northern states objected as well to this transformation as new Jersey said of the amendments and changes in government philosophy

“Transfers to congress the whole control of the right of suffrage in the state.. a power which they [the states] have never been willing to surrender to the general government, and which was reserved to the states as a fundamental principle on which the constitution itself was constructed the principles of self government”

Later the federal government would take more power from the states with the passing of the 17th amendment, it was said than we went from a complex republic to a simple republic. Today the tenth amendment is completely ignored. Senators instead of being appointed by the states, know do the bidding of fund raisers from around the country and political party allies in D.C

“The civil war called forth a new constitutional order...the principles of this legal regime are so radically different from our original constitution drafted in 1787, that they deserve to be reorganized as a second American constitution”
-Columbia University Law Professor George R Fletcher

You will not be able to find any historian who will claim the government we are under today in America, is similar to that of Americans under the antebellum government.

“Today's federal government is considerably at odds with that envisioned by the framers of the constitution”
-John Olin George Mason University

“Many think our present federal government is the same one our founders fathers established. Nothing could be further from the truth....after the [civil war].... government power over the people underwent a radical change in the limits of government authority”
-James and Walter Kennedy The South Was Right

Supreme Court Reigns Supreme

“The war between the states established.. this principle, that the federal government is, through its courts, the final judge of its own powers”
-President Woodrow Wilson

“The federal government made itself the sole arbitrator of constitutionality, through the supreme court. Not surprisingly the federal government has used this role to decide that there are in fact no limits to its power. Consequentially Americans are no longer sovereign over their government... they fought a war of secession against just such an empire. To than turn around and create a similar empire of their own would have been the height of absurdity”
-Thomas J Dilorenzo Lincoln Unmasked

In the antebellum period the supreme court did not have the final say in any matter but was to simply judge its opinion. To imagine the founders as fighting the largest military in the world [Great Britain] to create a new government to protect life and liberty to than entrust everyone's liberty to a few politically appointed judges stretches the imagination. There was no three coequal branches. [ Won't be found anywhere in constitution] In antebellum America judges could not create policy, it had nor authority to enforce its rulings, they did not have lifetime appointments, were not independent, and did not have final say on constitutionality of a law. As the federalist papers say the legislative has the most authority and the Judiciary “Is beyond comparison the weakest of the three departments of power....it may be truly said to have neither force nor will.” When President Jackson was informed the supreme court decision went against his policy he said “Thank you for your opinion, but my opinion is different and equally valid.” The sovereign states courts had the right to review and judge federal court rulings and law when they overstepped and could override unconstitutional rulings.

With No Check on Federal Government From the States = Rapid Growth and Power of Federal Government


“The US government has grown into a monstrous tyrannical body that would not even by reorganized by its founders”
-Lochlainn Seabrook The Constitution Of The Confederate States Of America Explained

With the death of state sovereignty and transformation of the government by Lincoln. The federal government know has sole power to interpret its own power and forcing the states and American people to comply as it has no other authority. Not only have the states been reduced and put under authority of the federal government, but the 9th and 10th amendments are ignored almost completely in today's politics. Without that check on government, our checks and balances and separation of powers can only slow the federal expansion. With all power at the capital, elites and interest groups control politicians to their bidding. Than you end up with self serving politicians instead of servants of we the people. The true original conservative political party that was once the dominate party in America, Jeffersonian democracy is all but gone in American politics.

“The war . . . has tended, more than any other event in the history of the country to militate against the Jeffersonian idea, that “the best government is that which governs least.”
-Illinois Governor Richard Yates, January 2, 1865

With no check from the states, President Lincoln violated the constitution in multiple ways, ran up 2.5 billion in national dept, distributed public lands, printed national currency, instituted a national bank, “Standardized fiscal transactions across state lines for the first time” collected numerous forms of taxes “Taxes on everything imaginable” [ From perfume, playing cards to bowling to going to the theater] , instituted a income tax, created the bureau of internal revenue [ Early IRS with 7,000 employees in 63] created the department of agricultural, instituted a federal draft, facilitated the industrial revolution in America at the exspence of agrarian lifestyle, laid massive rail, founded the transcontinental railroad, gave 58 million acres to rail companies etc.

[The civil war was] “The fiery crucible which the old nation was melted down, and out of which modern America was poured”
-Historian William Hess

Deification of the State

Starting with Lincoln and following generations of politicians led to what professor Delorenzo calls the “Deification of the state.” The civil war started in America the philosophy that the federal government is the ultimate authority. This has led to rapid growth in the federal government, because there is no higher authority, than the government thinks itself god. There is nothing it cannot touch. It can take away any right from anyone. It thinks it must not just solve all the ills in the country, it must control all modes of behavior and set its own standards. It will regulate the lives to conform to its own image that is beneficial to itself, resulting in more power to itself. People became servants of the state rather than the government servants of its citizens.

“Liberty became less important than the well being of government”
-Al Benson Jr and Walter Kennedy Lincolns Marxists

This is in drastic contrast to the founders who's view was Governments are instituted among men to protect those unalienable rights that come from a higher authority than man [government] that is god. The founders constantly acknowledged that biblical higher power that they were accountable to. Man was not the ultimate authority in fact all men were created equal. This philosophy that reorganizes a creator, produces a limited government. Government is not the ultimate authority but is to protect all citizens god given liberty. It also believes that man should alter and abolish a government that is destructive to those rights of the people. This was stomped out by the civil war, the government is ultimate authority, not the citizens, nor even god.

“The civil war was that the right to govern is paramount over the right to live, that man is made for government, rather than that government is made for man, and that for men to claim the right of self government is to deserve and incure the death penalty”
-Charles L.C minor The real Lincoln 1928

"What we call liberty our founders called bondage...we have not freed the slaves we have extended the plantation, know, we are all slaves"
-Peter Marshall JR The Great War Debate

Lincoln “Remade America”
-Gary Wills

“Overthrow the present form of Federal-republican government, and to establish a strong centralized government in its stead...national banks, bankrupt laws, a vast and permanent public debt, high tariffs, heavy direct taxation, enormous expenditure, gigantic and stupendous peculation . . . No more state lines, no more state governments, but a consolidated monarchy or vast centralized military despotism.” “instead of crushing out the rebellion,” the “effort has been to crush out the spirit of liberty” in the Northern states.
-Northern Congressman Clement L. Vallandigham D-Ohio spoke of the reason for Lincolns war 1863


Yet with government run education, the American people

“Have been taught to celebrate this betrayal of the founding fathers..The vast bulk of Americans proceed through twelve years of government funded education [by an interesting coincidence] teaches them all about the wonders of federal government, how lost they'd be without it, and how foolish it would be to worry that the constitution might not authorize most of what it does. Portrayed as a benevolent force innocently pursuing the common good....cost less benefits granted by selfless crusaders for justice”
-Tomas Woods Nullification How to Resist federal tyranny in the 21st Century

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It is not illegal, therefore its legal by a free people.

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It is not a matter of legality, as your references point out.

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“Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself...each party has equal right to judge for itself”
-Kentucky and Virginia Resolutions of 1798 written by Thomas Jefferson and James Madison

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This holds that each state is discrete from its co-states, and that each co-state ought to have discretion to judge the constitutional validity of specific acts of federal government, which should not be "exclusive or final judge of the extent of powers delegate to itself". This is part of the debate on what powers will remain to the states relative to each other and to the federal government, and does not claim that states have not submitted crucial aspects of their sovereignty to the Constitution and its central government following their ratification and accession.

The actual line concluding this paragraph:

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each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

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The meaning is completely in line with what I have said.

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This is not how it has always been or intended by the founders. The federal government only had power and authority that was delegated it by the states. That authority was only within the limits specifically stated in the Constitution.

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Misleading. Of course the government is not the same, as the Constitution itself provides for how the government should change itself, seeing as it would be a useless document more rigid than any Codices of the Old World to prescribe an unchanging set of specific commandments. The government is constantly being delegated new powers, and other powers are revised. This is how the legislature operates and was intended to operate under the Constitution. You may argue specific aspects and decisions over time, but the system is precisely working as originally devised, with the exception of some explicit and significant Constitutional changes such as the direct election of Senators. Don't conflate, also, "powers" with specific legislations and regulations that give the government something else to do under the purview of the very powers. Powers are categories and not themselves single acts of Congress, which are indeed exercises of these powers.

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The civil war marked the beginnings of an all powerful federal government in America, something the founding fathers did all in their powers to stop. With the Lincoln administration and with the passing of the 14th15th amendment soon after the war. [Where the south was denied the right to vote] We moved further to a more centralized government and denied states sovereignty. It destroyed the concept of delegated and reserved powers, gone was the concept of government authority voluntary from the people. It changed America from a constitution of states to promote common interest, to a national cohesion controlling states by a centralized government. In antebellum America each state acted for the most part as its own country. People saw themselves as citizens of the state first, country second. Under Lincoln it is said the reverse happened. Northern states objected as well to this transformation as new Jersey said of the amendments and changes in government philosophy

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The states lost little sovereignty, of what they had kept following the ratification of the Constitution, during the period of the expansion of the federal government. The federal government has indeed grown more powerful over time, precisely because of the accession of continual multitudes of states to the Union. This should be obvious, and whether or not you like it is not a matter of Constitutionality or a deprivation of sovereignty. The Constitution has done far more to deprive states of sovereignty than any acts of the federal government. This is indeed one of the very things states-rightists feared most, the accession of other states and the concomitant regulation of and by the federal government diluting their individual contributions. But, again, this is exactly what the framers of the Constitution wanted to account for in their views of the animosity between states.

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It was the states in their sovereignty that did almost all the governing

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As is true today. The federal government as an organization is very large and complex now, but its effect is almost entirely to supplement the internal management of the respective States, not to replace it. That individual states have less say overall in interstate affairs does not diminish their self-governance of internal affairs. You may also be confused by the fact that state and federal government work closely on many issues, but this is indeed the essence of a central government to coordinate with lower levels and not propose blind administration that would immediately become locked in standstill. It would be of little value to having a federal bureau of investigation if it studiously worked independent of state-level law enforcement. Shared responsibility of function has always been the overriding principle in state-federal relations.


And that is essentially your greatest confusion, that notion that gross-level expansion of the federal government and its offices is limited by constitution in ways that haven't exactly been respected as the federal government has grown. The federal government has grown exactly within its Constitutional limits, and of course the fact that it has grown and more states have joined will, among other things, change the nature of states' interactions between each other and the central government.

That the government is not literally what it was in 1800 is not a contravention of the Constitution. If you cannot understand this then you are simply rambling disconnectedly on a defunct fragmented thesis.

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While this State maintains its sovereignty and independence, all the citizens can find protection against outrage and injustice in the strong arm of the State government..not legally binding on the citizens of this State.”

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That Massachusetts resolution said that the state hoped to work in tandem with the other states of the Union to introduce judicial challenges and perhaps even a Constitutional amendment to clarify controls on commerce. The resolution was ardently pro-Union and anti-secession. Ultimately, it amounted to nothing. The embargo was constitutional in principle, but not in enforcement, and it was opposed largely on economic grounds.

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When Connecticut was called to bring out its militia to guard the cost they replied

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The question of federal regulation of state militias was a topic of discussion during the Conventions, but beyond the 2nd Amendment it was not resolved in a way amicable to the response you quote. The 1792 Militia Act and its inadequate performance as a system oriented toward state autonomy led the government to make multiple efforts centralize command and control, as was specifically allotted in the Constitution. State intransigence and non-compliance during the 1812 war was never a matter of constitutionality but of maintaining perceived interests, insofar as specious complaints could take them. These were struck down internally, in the national discourse, in revised New England constitutions, and later in court cases (see Martin vs. Mott (1827)). Also see the example of one Vermont militia company during the war, which, when ordered to return by their governor, replied: "we are under paramount obligation to our common country, to the great confederacy of the states."

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n 1803 in the Olmstead case, the governor of Pennsylvania ordered the state's militia to defend two ladies against service of process by any officer "of any Court of the United States." That stance was not abandoned until the chief justice of the state court held that it was not clear the United States courts did not have jurisdiction (Kilpatrick 1957, 101-18).

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Actually, this was dealt with in United States v. Judge Peters, wherein Marshall said:

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If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals

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And all the rest in the same pattern. You have this awful habit of distorting verbiage that happens to contradict your position, and then leavening it with irrelevant retrospectives or quotations from partisans. Repeating old bad arguments does not make them new or good.

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After the civil war meaningful states rights ended, and our constitutional republic along with it.

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In no concrete way is this true.

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Supreme Court Reigns Supreme

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The closest to truth that you come is here, as indeed the first years of the republic had relatively little to say on what the Supreme Court should do up. It is now however, under the bedrock principles of common law, authoritative. So the question here is far more fundamental than one of constitutionality, since the Constitution does not and cannot tell us much on the subject.

Since the question is Antebellum the answer has to be yes. It was generally accepted as a forgone fact. Lincoln himself would have had tracts in his law books outlining the constitutional principles for it and he had addressed congress supporting it during the Mexican War. Had you asked the average man in the street of its legality, most would have answered yes.

Most of the newspapers in the country’s reaction to South Carolina’s secession was “Let them Go”.
Only after Lincoln weighed in did the Republican papers change their stance.

Lincoln’s and the Republican explanations as to why it should not be allowed were contradictory and filled with logical facilities.

Looking to the Constitution for restrictions on secession is illogical. The Constitution is a compact of the States creating the Federal Government for a specific purpose and limiting its powers to only those expressly mentioned. These are delegated powers from the states to its agent, the federal government. What states were or were not members made no change to the contract. Federal powers were focused outward. It primary functions were to insure the movement of trade, conduct diplomacy with other countries, and to prosecute any wars which impinged upon the states of the union.

It was a voluntary union of sovereign States (countries) who only delegated specific and limited powers. The ability to leave that union is no where specified in the agreement, therefore it would not be a limiting factor.

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Originally Posted by Fisherking

Since the question is Antebellum the answer has to be yes. It was generally accepted as a forgone fact. Lincoln himself would have had tracts in his law books outlining the constitutional principles for it and he had addressed congress supporting it during the Mexican War. Had you asked the average man in the street of its legality, most would have answered yes.

Most of the newspapers in the country’s reaction to South Carolina’s secession was “Let them Go”.
Only after Lincoln weighed in did the Republican papers change their stance.

Lincoln’s and the Republican explanations as to why it should not be allowed were contradictory and filled with logical facilities.

Looking to the Constitution for restrictions on secession is illogical. The Constitution is a compact of the States creating the Federal Government for a specific purpose and limiting its powers to only those expressly mentioned. These are delegated powers from the states to its agent, the federal government. What states were or were not members made no change to the contract. Federal powers were focused outward. It primary functions were to insure the movement of trade, conduct diplomacy with other countries, and to prosecute any wars which impinged upon the states of the union.

It was a voluntary union of sovereign States (countries) who only delegated specific and limited powers. The ability to leave that union is no where specified in the agreement, therefore it would not be a limiting factor.

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I would add Lincoln himself even supported secession before the war, but even during when it helped him, such as west Virginia secession from virginia and the confederacy during the war.

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Originally Posted by Montmorency

It is not a matter of legality, as your references point out.



This holds that each state is discrete from its co-states, and that each co-state ought to have discretion to judge the constitutional validity of specific acts of federal government, which should not be "exclusive or final judge of the extent of powers delegate to itself". This is part of the debate on what powers will remain to the states relative to each other and to the federal government, and does not claim that states have not submitted crucial aspects of their sovereignty to the Constitution and its central government following their ratification and accession.

The actual line concluding this paragraph:



The meaning is completely in line with what I have said.




Misleading. Of course the government is not the same, as the Constitution itself provides for how the government should change itself, seeing as it would be a useless document more rigid than any Codices of the Old World to prescribe an unchanging set of specific commandments. The government is constantly being delegated new powers, and other powers are revised. This is how the legislature operates and was intended to operate under the Constitution. You may argue specific aspects and decisions over time, but the system is precisely working as originally devised, with the exception of some explicit and significant Constitutional changes such as the direct election of Senators. Don't conflate, also, "powers" with specific legislations and regulations that give the government something else to do under the purview of the very powers. Powers are categories and not themselves single acts of Congress, which are indeed exercises of these powers.



The states lost little sovereignty, of what they had kept following the ratification of the Constitution, during the period of the expansion of the federal government. The federal government has indeed grown more powerful over time, precisely because of the accession of continual multitudes of states to the Union. This should be obvious, and whether or not you like it is not a matter of Constitutionality or a deprivation of sovereignty. The Constitution has done far more to deprive states of sovereignty than any acts of the federal government. This is indeed one of the very things states-rightists feared most, the accession of other states and the concomitant regulation of and by the federal government diluting their individual contributions. But, again, this is exactly what the framers of the Constitution wanted to account for in their views of the animosity between states.



As is true today. The federal government as an organization is very large and complex now, but its effect is almost entirely to supplement the internal management of the respective States, not to replace it. That individual states have less say overall in interstate affairs does not diminish their self-governance of internal affairs. You may also be confused by the fact that state and federal government work closely on many issues, but this is indeed the essence of a central government to coordinate with lower levels and not propose blind administration that would immediately become locked in standstill. It would be of little value to having a federal bureau of investigation if it studiously worked independent of state-level law enforcement. Shared responsibility of function has always been the overriding principle in state-federal relations.


And that is essentially your greatest confusion, that notion that gross-level expansion of the federal government and its offices is limited by constitution in ways that haven't exactly been respected as the federal government has grown. The federal government has grown exactly within its Constitutional limits, and of course the fact that it has grown and more states have joined will, among other things, change the nature of states' interactions between each other and the central government.

That the government is not literally what it was in 1800 is not a contravention of the Constitution. If you cannot understand this then you are simply rambling disconnectedly on a defunct fragmented thesis.




That Massachusetts resolution said that the state hoped to work in tandem with the other states of the Union to introduce judicial challenges and perhaps even a Constitutional amendment to clarify controls on commerce. The resolution was ardently pro-Union and anti-secession. Ultimately, it amounted to nothing. The embargo was constitutional in principle, but not in enforcement, and it was opposed largely on economic grounds.



The question of federal regulation of state militias was a topic of discussion during the Conventions, but beyond the 2nd Amendment it was not resolved in a way amicable to the response you quote. The 1792 Militia Act and its inadequate performance as a system oriented toward state autonomy led the government to make multiple efforts centralize command and control, as was specifically allotted in the Constitution. State intransigence and non-compliance during the 1812 war was never a matter of constitutionality but of maintaining perceived interests, insofar as specious complaints could take them. These were struck down internally, in the national discourse, in revised New England constitutions, and later in court cases (see Martin vs. Mott (1827)). Also see the example of one Vermont militia company during the war, which, when ordered to return by their governor, replied: "we are under paramount obligation to our common country, to the great confederacy of the states."



Actually, this was dealt with in United States v. Judge Peters, wherein Marshall said:



And all the rest in the same pattern. You have this awful habit of distorting verbiage that happens to contradict your position, and then leavening it with irrelevant retrospectives or quotations from partisans. Repeating old bad arguments does not make them new or good.



In no concrete way is this true.



The closest to truth that you come is here, as indeed the first years of the republic had relatively little to say on what the Supreme Court should do up. It is now however, under the bedrock principles of common law, authoritative. So the question here is far more fundamental than one of constitutionality, since the Constitution does not and cannot tell us much on the subject.

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Thanks for your posts and opinions but I will only respond when you bring up something relevant or new and supportt it as well. Much of what you have says has been refuted in my post on sovereignty or secession. Unless you can support and counter, i care not of your opinion so far as responding to it.


The original quote was used not for legality of secession, but the sovereignty of the states and the compact under the Constitution.


I was not referring to the amendments [that have greatly changed] but the viewpoint of the Constitution and federal in america since the war. That the federal is the highest power and authority not we the people of the sovereign states.


The states lost little sovereignty....The Constitution has done far more to deprive states of sovereignty than any acts of the federal government... this is exactly what the framers of the Constitution wanted to account for in their views of the animosity between states.


This is where we depart and where everything you say hinges on this. I showed this was not the case and asked you to support your position on this matter. I dont think any state would have ratified the Constitution if this was the case.


We must agree to disagree on the expansion of the federal, it goes well beyond the Constitution but perhaps that is for another thread.



The Massachusetts/nullification of the embargo was not posted to support secession, but state sovereignty. I cant help but notice you ignored the secession movements arguments and respond to a state sovighty one.


The point was again state sovereignty and Connecticut seeking as you stated, the interest of its people over the federal.


Federal judge decided an issue

I will refer you again to the formation of the 11th amendment. Where the supreme court made a unconstitutional decision. And congress and states rejected them [as this was often the case before the civil war] and amedneded the Constitution and sided with Georgia. The whole point of sovereignty is to protect against the federal. The fact you see the supreme court as the ultimate authority is proof of how our understanding of the federal and constitutions has changed.

I am asking you to step out of your comfort zone, and view history from its day, not today's understanding and forcing it on them.

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Originally Posted by Fisherking

Looking to the Constitution for restrictions on secession is illogical. The Constitution is a compact of the States creating the Federal Government for a specific purpose and limiting its powers to only those expressly mentioned. These are delegated powers from the states to its agent, the federal government. What states were or were not members made no change to the contract. Federal powers were focused outward. It primary functions were to insure the movement of trade, conduct diplomacy with other countries, and to prosecute any wars which impinged upon the states of the union.

It was a voluntary union of sovereign States (countries) who only delegated specific and limited powers. The ability to leave that union is no where specified in the agreement, therefore it would not be a limiting factor.

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The states voluntarily joined the union and agreed to play by the rules of it. It enumerates a great many things- like the process for admitting states to the union and how to settle disputes between the states. Packing up and leaving the union isn't listed among any of the options. It's a contract, or treaty with no escape clause. Therefore, as I said, the only way out of from mutual agreement of all parties, or by force.

Today, I think the federal government has far overstepped its bounds into the rights of the states- but almost all of it was done by will of the electorate, sadly. Still, none of this gives a state any legal right to unilaterally secede.

Is a contract. That is correct. And it should be viewed always under contract law. The Agent can never be superior to the principals. When the agent exceeds it limits the contract is void.

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Originally Posted by Fisherking

Is a contract. That is correct. And it should be viewed always under contract law. The Agent can never be superior to the principals. When the agent exceeds it limits the contract is void.

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That, and agreeing to the contract [Constitution] that has no power/authority that says you cannot get out.

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Originally Posted by totalrelism

Thanks for your posts and opinions but I will only respond when you bring up something relevant or new and supportt it as well. Much of what you have says has been refuted in my post on sovereignty or secession. Unless you can support and counter, i care not of your opinion so far as responding to it.

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Yet I have seen your readings corrected and countered. Do as you will.

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The original quote was used not for legality of secession, but the sovereignty of the states and the compact under the Constitution.

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That's what I was talking about. If you didn't understand what exactly I foreclosed in the discussion of secession, and why I separated it from the discusion of sovereignty, read my rephrasing further down.

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That the federal is the highest power and authority not we the people of the sovereign states.

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And I disagree. The fact that the federal government has grown larger does not negate the authority that the states had maintained. I see your position as less to do with specific legal or policy changes that neutralize the states's administration of internal affairs (of which in my estimation there are few) but the sheer fact that the cultural significance of the federal government has increased. Your prejudice against central government is no particular argument showing that the status of The People as the root of legitimacy has changed, unless you take it to be so in a tautological way. Of course I would not accept the necessary premises for that.

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I showed this was not the case and asked you to support your position on this matter.I dont think any state would have ratified the Constitution if this was the case.

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Again I would say the same to you. Perhaps it would help to point out that the individual states never had a chance to attain a great deal of sovereignty relative to each other, such as there was between European states. Thus much of what they gave up was in fact the potential to express aspects of full sovereignty. The Constitution foreclosed on these potentialities, and that was the view of many contemporaries and signers. They signed precisely because the Convention embedded numerous compromises and assurances to assuage interstate animosities and the threat of hijacking/coup d'etat. The question is then whether you are here to argue about the opinions of individual contemporaries, or to advance some absolute reading that cuts across time and circumstance.

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I will refer you again to the formation of the 11th amendment. Where the supreme court made a unconstitutional decision. And congress and states rejected them [as this was often the case before the civil war] and amedneded the Constitution and sided with Georgia. The whole point of sovereignty is to protect against the federal.

The fact you see the supreme court as the ultimate authority is proof of how our understanding of the federal and constitutions has changed.

I am asking you to step out of your comfort zone, and view history from its day, not today's understanding and forcing it on them.

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The understanding on this point has not changed so much as been cemented by tradition. The role of the SCOTUS in judicial review had broad approbation and rapidly normalized. Jackson's defiance earned him his share of excoriation.

On the subject of the 11th Amendment, as always, John Marshall had insight:

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It is a part of our history that, at the adoption of the constitution, all the states were greatly indebted; and the apprehension that these debts might be prosecuted in the federal courts, formed a very serious objection to that instrument. Suits were instituted; and the court maintained its jurisdiction. The alarm was general; and, to quiet the apprehensions that were so extensively entertained, this amendment was proposed in congress, and adopted by the state legislatures. That its motive was not to maintain the sovereignty of a state from the degradation supposed to attend a compulsory appearance before the tribunal of the nation, may be inferred from the terms of the amendment. It does not comprehend controversies between two or more states, or between a state and a foreign state. The jurisdiction of the court still extends to these cases: and in these, a state may still be sued. We must ascribe the amendment, then, to some other cause than the dignity of a state. There is no difficulty in finding this cause. Those who were inhibited from commencing a suit against a state, or from prosecuting one which might be commenced before the adoption of the amendment, were persons who might probably be its creditors. There was not much reason to fear that foreign or sister states would be creditors to any considerable amount, and there was reason to retain the jurisdiction of the court in those cases, because it might be essential to the preservation of peace. The amendment, therefore, extended to suits commenced or prosecuted by individuals, but not to those brought by states.

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Rather than projecting a contemporary mistrust of federal government onto the debates of the day, one should pay scrutiny to the many specific and concrete worldly concerns that statesmen of the day had. The abstraction of "tyranny" was more often a rhetorical device than a literal one. Such is the nature of self-advocacy and competition.

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Originally Posted by totalrelism

The Massachusetts/nullification of the embargo was not posted to support secession, but state sovereignty. I cant help but notice you ignored the secession movements arguments and respond to a state sovighty one.

The point was again state sovereignty and Connecticut seeking as you stated, the interest of its people over the federal.

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Such is the nature of self-advocacy and competition. Whether and when such challenges are legally sound is when the Constitution, and then subordinate law, must be checked.


Let me get through secession again. I hold that there is no law that can forbid or permit secession. Secession is not to be conflated with territorial exchanges between states. Neither should it be conflated with the retirement of one state and the formation of new entities from its subsets, though this is parallel to secession in its extra-legal nature. Secession cannot be regulated, you see, because it is so extralegal. One might invoke a "human/natural right" or "God-given right" to action, but this is not a matter of legality. Secession is by its nature the saltation between legal orders, the end of one and the formation of another. There can be no continuity unless or until it is retroactively established, for example a law making reference to laws or activities carried on under the old order. This cannot follow from the other direction, toward posterity.

Secession must prove to be its own legality, as there is nothing else which can confer it, no more than there is something which can remove it, that which it does not possess in the first place. Secession is not held accountable to the law; it is configured only by power.

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I would add Lincoln himself even supported secession before the war, but even during when it helped him, such as west Virginia secession from virginia and the confederacy during the war.

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In this case, we remain aware that legal processes and secession don't intersect conceptually. From the standpoint of the law, the government of Virginia within the Union (i.e. rump government given that most of the state was non-participant) moved forward an administrative division that was then duly processed as a new state. From a legal-political perspective the West Virginia accession thus fits into the broader 19th-century pattern of predicating state boundaries and admissions on compromises of slaveholding (before the war) or dominant party affiliation (after the war). The actual legal proceedings were of course inadequate in rigor - the very fact that a legitimate state government was only its rump government in opposition to rebels should have made such momentous action unsanctionable until the restoration of normal status - but the principle was not that of secession.

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Originally Posted by Fisherking

The Constitution is a compact of the States creating the Federal Government for a specific purpose and limiting its powers to only those expressly mentioned.

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By the way, this is a crucial mistake. The Constitution does not apply that word "expressly" to federal powers. Only the Articles of Confederation do.

Only by understanding this can you understand the course of the federal government, whether you like it or not.

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Originally Posted by Fisherking

Is a contract. That is correct. And it should be viewed always under contract law. The Agent can never be superior to the principals. When the agent exceeds it limits the contract is void.

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I don't think you'll find this line of reasoning productive. One state says the terms of the Constitution are being violated.... others do not. The Constitution specifies that Supreme Court settles all disputes between the states. Not that the aggrieved state can take their ball and go home.

They can argue the "contract" is void all they want. But it's meaningless unless the other states agree or the state is willing to fight- which is what I've said.

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Originally Posted by Xiahou

I don't think you'll find this line of reasoning productive. One state says the terms of the Constitution are being violated.... others do not. The Constitution specifies that Supreme Court settles all disputes between the states. Not that the aggrieved state can take their ball and go home.

They can argue the "contract" is void all they want. But it's meaningless unless the other states agree or the state is willing to fight- which is what I've said.

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It says between states. It does not say between a state or states and the federal government. No were is the court given jurisdiction over the constitution or to be its one and only arbiter.
It has resulted in numerous constitutional crisis that are still not settled. It resulted in the principals of '98 and still goes on today. In most part because Nationalists or Federal Supremacists refuse to look at the constitution as a contract and federal government as its agent.