The Legality of Seccession in Antebellum America

[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.

[total relism]

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.

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

[Montmorency]

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.

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

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

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.

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

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.

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.

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.

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.

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:

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.

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.

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.

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.

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.

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.

[Montmorency]

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.

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.

[Xiahou]

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.

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.

[Fisherking]

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.

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.