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Old 06-30-2019, 01:20 PM
 
Location: Parts Unknown, Northern California
40,869 posts, read 18,557,746 times
Reputation: 18653

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Quote:
Originally Posted by TedF0ster View Post
Alexis de Tocqueville
from Chapter 18 of his book Democracy in America
archived at marxists.org
Quote:
The Union was formed by the voluntary agreement of the States
Part of that agreement was that they would determine political leadership via elections. I am unable to find any section in the Constitution which explains that the elections are only binding if everyone is pleased with the outcome.

Instead of relying on de Tocqueville, who of course was a foreign observer and not the final word on US Constitutional law, could you please explain to me how a system which relies on elections to determine political office and power, could possibly work if it included a clause which said that if you are not satisfied with the results of the election, you do not have to honor those results.

Further, the attempts to compare the southern revolt to the American Revolution are not going to wash. The American Revolution was composed of colonies, which operated under royal charters, revolting against the laws of Parliament. The colonies had no representation in Parliament, the charters were all one way documents which the King reserved the right to revoke at anytime. The Colonist in effect, had no political recourse short of revolution if they were dissatisfied with their government. The Confederates states on the other hand had voluntarily joined the union and agreed to abide by the Constitution, they had agreed to respect the outcomes of elections, and they had the resource of the next election to try and change things.

Instead they stomped out in a snit. A snit which you seem to feel needs defending.
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Old 06-30-2019, 04:12 PM
 
7,938 posts, read 3,188,904 times
Reputation: 5450
Quote:
Originally Posted by Grandstander View Post
Part of that agreement was that they would determine political leadership via elections. I am unable to find any section in the Constitution which explains that the elections are only binding if everyone is pleased with the outcome.

Instead of relying on de Tocqueville, who of course was a foreign observer and not the final word on US Constitutional law, could you please explain to me how a system which relies on elections to determine political office and power, could possibly work if it included a clause which said that if you are not satisfied with the results of the election, you do not have to honor those results.

Further, the attempts to compare the southern revolt to the American Revolution are not going to wash. The American Revolution was composed of colonies, which operated under royal charters, revolting against the laws of Parliament. The colonies had no representation in Parliament, the charters were all one way documents which the King reserved the right to revoke at anytime. The Colonist in effect, had no political recourse short of revolution if they were dissatisfied with their government. The Confederates states on the other hand had voluntarily joined the union and agreed to abide by the Constitution, they had agreed to respect the outcomes of elections, and they had the resource of the next election to try and change things.

Instead they stomped out in a snit. A snit which you seem to feel needs defending.
Now that was a stretch.
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Old 06-30-2019, 05:57 PM
 
9,188 posts, read 9,267,265 times
Reputation: 28764
Quote:
Originally Posted by TedF0ster View Post
Alexis de Tocqueville
from Chapter 18 of his book Democracy in America
archived at marxists.org
Instead of reading de Tocqueville, I'd encourage to read Texas v. White which we have discussed above. The difference one is the opinion of a foreigner. The other is an opinion by the highest court in the USA which has the right to interpret the Constitution and lesser laws.

Chief Justice Chase wrote in his opinion that when the original thirteen colonies formed the Articles of Confederation that the articles called for a "perpetual union" of the states. Later, when the Constitution was ratified, the preamble contains language about the states choosing to "form a more perfect union". A more perfect union would not be one in which a "perpetual union" became a "dissolvable union". Therefore, it was not contemplated that states had a right to secede from the Union. As previously mentioned, there is no mechanism built into the Constitution for states to leave the United States. This is consistent with the intent for the union to be a perpetual one.

Really? Quoting de Tocqueville? You should be able to do better.
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Old 07-01-2019, 07:51 AM
 
28 posts, read 4,153 times
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Quote:
Originally Posted by markg91359 View Post
Instead of reading de Tocqueville, I'd encourage to read Texas v. White which we have discussed above. The difference one is the opinion of a foreigner. The other is an opinion by the highest court in the USA which has the right to interpret the Constitution and lesser laws.

Chief Justice Chase wrote in his opinion that when the original thirteen colonies formed the Articles of Confederation that the articles called for a "perpetual union" of the states. Later, when the Constitution was ratified, the preamble contains language about the states choosing to "form a more perfect union". A more perfect union would not be one in which a "perpetual union" became a "dissolvable union". Therefore, it was not contemplated that states had a right to secede from the Union. As previously mentioned, there is no mechanism built into the Constitution for states to leave the United States. This is consistent with the intent for the union to be a perpetual one.

Really? Quoting de Tocqueville? You should be able to do better.
In effect, the thirteen colonies seceded from the British Empire. Since the colonies didn’t attempt to break up the Empire, or overthrow the British government, a more accurate term for what they did is secession.

Even though the Articles of Confederation spoke of a perpetual union, the original states left this union for a new one. They seceded from the union of the Articles to form the union of the Constitution. No one has ever complained about their doing so. Therefore, secession must have been permitted under the Articles of Confederation.

Since the States had already seen fit to secede twice, why would they turn right around and forbid themselves to do so under the Constitution?

*****

Re Texas v. White: once the Constitution was ratified, the Articles of Confederation became null and void. Therefore, the States were no longer bound by what it said.

Even if the Preamble was binding upon the States, it does not specifically forbid a State from seceding. As it is, the Preamble is a statement of hopes and wishes held by the States as they entered into the new union. Hopes and wishes are not commands and requirements, and so the language of the Preamble is not binding upon the States. The Constitution doesn’t become binding until Article I begins.

Because of the Tenth Amendment, each State retains the power to secede, and there is no language in the Constitution requiring a specific mechanism for doing so.

Supreme Court Justices are not demigods of the law, they are only human and they can make mistakes. Many think that this is what happened in Plessy v. Ferguson, and Dred Scott v. Sandford. Because the Articles of Confederation had become null and void, and because the Preamble is not binding upon the States, the Supreme Court erred in Texas v. White. The Confederate States had the Constitutional right to leave the union and form their own country.

Last edited by TedF0ster; 07-01-2019 at 08:44 AM..
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Old 07-01-2019, 08:59 AM
 
Location: New York Area
15,877 posts, read 6,248,592 times
Reputation: 12318
Quote:
Originally Posted by TedF0ster View Post
In effect, the thirteen colonies seceded from the British Empire. Since the colonies didn’t attempt to break up the Empire, or overthrow the British government, a more accurate term for what they did is secession.
Independence required revolution and a war. It was certainly not a matter of right.

Quote:
Originally Posted by TedF0ster View Post
Even though the Articles of Confederation spoke of a perpetual union, the original states left this union for a new one. They seceded from the union of the Articles to form the union of the Constitution. No one has ever complained about their doing so. Therefore, secession must have been permitted under the Articles of Confederation.

Since the States had already seen fit to secede twice, why would they turn right around and forbid themselves to do so under the Constitution?
States did not "secede" from the grouping created under the Articles of Confederation. The Constitution, when ratified, superseded the Articles. It was not a secession process.

*****

Articles of Confederation
Quote:
Re Texas v. White: once the Constitution was ratified, the Articles of Confederation became null and void. Therefore, the States were no longer bound by what it said.
I don't understand you. Do you understand you?

Quote:
Originally Posted by TedF0ster View Post
Even if the Preamble was binding upon the States, it does not specifically forbid a State from seceding. As it is, the Preamble is a statement of hopes and wishes held by the States as they entered into the new union. Hopes and wishes are not commands and requirements, and so the language of the Preamble is not binding upon the States. The Constitution doesn’t become binding until Article I begins.

Because of the Tenth Amendment, each State retains the power to secede, and there is no language in the Constitution requiring a specific mechanism for doing so.
The Tenth Amendment states "(t)he 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." It is a default provision, much like the 55 MPH speed limit on unposted roads in New York. The correct analysis is that the Constitution contains detailed provisions for the admission of states. If the reverse were permissible the Constitution would contain such a provision. See Expressio Unius Est Exclusio Alterius. "A principle in statutory construction: when one or more things of a class are expressly mentioned others of the same class are excluded."

Quote:
Originally Posted by TedF0ster View Post
Supreme Court Justices are not demigods of the law, they are only human and they can make mistakes. Many think that this is what happened in Plessy v. Ferguson, and Dred Scott v. Sandford. Because the Articles of Confederation had become null and void, and because the Preamble is not binding upon the States, the Supreme Court erred in Texas v. White. The Confederate States had the Constitutional right to leave the union and form their own country.
Plessy v. Ferguson and Dred Scott v. Sandford, as well as numerous other cases have been overturned by the Supreme Court. Until overturned the decisions are the law of the land, the way, in the case of Dred Scott v. Sandford the 13th through 15th Amendments control, and Brown v. Board of Education now controls rather than Plessy v. Ferguson. TedF0ster, no one is stopping you from trying to overturn Texax v. White. CD does not have jurisdiction; SCOTUS does.

Last edited by mensaguy; 07-01-2019 at 05:23 PM.. Reason: Fixed quote tag
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Old 07-01-2019, 02:08 PM
 
Location: Parts Unknown, Northern California
40,869 posts, read 18,557,746 times
Reputation: 18653
Quote:
Originally Posted by TedF0ster View Post

Even though the Articles of Confederation spoke of a perpetual union, the original states left this union for a new one. They seceded from the union of the Articles to form the union of the Constitution. No one has ever complained about their doing so. Therefore, secession must have been permitted under the Articles of Confederation.

.
That is not the case. The Articles of Confederation government was voluntarily dissolved when the states agreed to replace it with the Constitution. No one left the Articles government as individual states. Where were the declarations of secession that you find in 1860 and 1861? You are misusing the term secede.



*****



Quote:
Even if the Preamble was binding upon the States, it does not specifically forbid a State from seceding. As it is, the Preamble is a statement of hopes and wishes held by the States as they entered into the new union. Hopes and wishes are not commands and requirements, and so the language of the Preamble is not binding upon the States. The Constitution doesn’t become binding until Article I begins.
Here I believe that you are correct. The language in the preamble does not prohibit, nor does it permit, secession.

Quote:
Because of the Tenth Amendment, each State retains the power to secede, and there is no language in the Constitution requiring a specific mechanism for doing so.
Here you get derailed. The obvious intention of the 10th amendment was the reservation of internal powers for the state, the ability to impose state taxes, the ability to regulate schools, the ability to define legal marriages. If there had been an intention to include something as momentous as the power to break up the nation and to defy federal authority, then surely it would have been written into the document in unambiguous terms. The tenth amendment clearly was meant to reference housekeeping powers within each state, not to empower any state with the ability to make national decisions on its own.

Irrespective of Texas vs White, I maintain that the notion of secession never had any force of law supporting it, nor any force of law denying it. There simply is no specific language where that specific power is addressed. Those who wish to argue the legality of secession must resort to arguing that this language implies such a power, or this language implies that such a power was forbidden. Since both sides of the argument are able to find such supporting implications, it is a legal wash.

And that is why a war was required to settle the matter, the solution was never going to be found in the Constitution.

The moral argument about secession is a different one from the legal argument. Since the legal argument is just spinning wheels with no hope of an absolute resolution, it is the morality of secession which must be judged. I see secession as people walking out on an contract to which they had agreed to abide. I see secession as a reaction to the election of Republicans as the South dropping its drawers and taking a dump on the entire concept of democracy. I have asked you before to explain to me how a system which uses elections to distribute political power, can possibly work without everyone agreeing in advance to respect the outcomes of the elections. You have provided no response to this and it certainly seems to be the critical center of the dispute.
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