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In the end, we are just probably going to have to agree to disagree!
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=HistorianDude;15132168]I believe that you are confusing the ultimate ruling with the reasoning that was necessary to reach that ruling. The distinction between dicta and ratio decidendi is not based whether or not the comments being considered were the specific subject of dispute, but whether or not they are central to the chain of reasoning and evidence that is necessary to justify the ruling.
But? Key to this rationale of yours is the use of the term "necessary" sans any precedent stare-decisis consideration. And that flies in the face of the principle of ratio decindendi. I stand by this definition:
The process of determining the ratio decidendi is a correctly thought analysis of what the court actually decided – essentially, based on the legal points about which the parties in the case actually fought. All other statements about the law in the text of a court opinion – all pronouncements that do not form a part of the court’s rulings on the issues actually decided in that particular case (whether they are correct statements of law or not) -- are obiter dicta, and are not rules for which that particular case stands.
In the case of Texas v. White, secession was not the issue being fought over. Not even incidentally. The Chase Court had to grab ahold of something which had no precedent --even in dicta/ratio decidindi -- and totally ignored the 9th and 10th ammendments. Have you ever read the dissenting opinion? Also, consider:
‘Ratio decidendi’ means the reason for the decision, that is to say the very fundamental point of law that was considered by the judge(s) and as a result of which consideration, and the decision was given. In English Law, there should always be reason!
Wouldn't you agree that there was no antecedent fundamental point of law nor constitutional consideration that could have lent to ratio-denindendi?
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The test is IMHO a simple one; if we removed those comments completely from the text of the decision, can the decision still stand?
No, it couldn't. But the interpretation of such a fact is really the crux of the matter.
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Your use of the word "proved" might have been rhetorically unfortunate but certainly you do not believe it was incorrect, do you?
Of course I do..else I would not be arguing against it. The dicta/rationale offered totally ignored the 9th and 10th ammendments.
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It was (as you yourself said) necessary for the ruling that Texas be shown never to have actually seceded from the union in any Constitutionally valid sense. If the court did not first conclude that secession was unconstitutional, then to subsequently reach the final ruling as they did would not have met any serious standards of logical or legal sufficiency.
You are putting the cart before the horse. Yes, to arrive at the ruling the Chase Court did, it was necessary to first attempt to "prove" Texas had never left the Union. Point is, however, the "proof" offered was dicta...according to definition. Or, at the least, it did not meet the standard of ratio decidendi , which is dependent on established points of law. There were none in this instance.
Really, when the Chase Court took it on, it was at least as much political as anything. And there is good evidence they did so in order to vindicate the Lincoln administrations war policies. The bond sales, although the issue, were merely the stalking horse.
BTW -- I know we can all find sources to back up our positions, but here is one you might want to read:
The State Secession Issue & Texas v. White « Intellectual Conservative Politics and Philosophy (http://www.intellectualconservative.com/2009/06/27/the-state-secession-issue-texas-v-white/ - broken link)
Where in the Constitution do you find that secession is legal? Exactly?
Do you actually believe anyone would've signed the Constitution if he'd thought that by saying 'yes' to the union once, he was depriving his descendants from ever saying 'no'? Where do you find evidence of this?
Do you actually believe anyone would've signed the Constitution if he'd thought that by saying 'yes' to the union once, he was depriving his descendants from ever saying 'no'? Where do you find evidence of this?
Why is it that nobody even pretends to make the tiniest effort at answering the question? It's not a hard one.
I will show you exactly how it is done. In response to the questions (that your substituted as an actual answer for the questions asked):
A1. Yes.
A2. Their failure to include or even consider such an option in the Bill of Rights.
Now, it's your turn:
Where in the Constitution do you find that secession is legal? Exactly?
Awwww a quibble is the best you can do? Fine, lawful/legal take your pick.
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Originally Posted by ergohead
See the 10th Amendment.
That awful, lawful, 10th Amendment.
Here is the full text of the 10th Amendment:
"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 note that secession is not mentioned anywhere. So... is that really the best you can do?
Awwww a quibble is the best you can do? Fine, lawful/legal take your pick.
Here is the full text of the 10th Amendment:
"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 note that secession is not mentioned anywhere. So... is that really the best you can do?
Since it's not prohibited, it's a power reserved by the states and people.
Since it's not prohibited, it's a power reserved by the states and people.
I understand that to be your argument... but it's not an answer to the question.
Pointing out that the Constitution is silent on an issue is rather different from pointing out that Constitution makes something either "legal" or "lawful." The Constitution also does not prohibit a state from detonating a nuclear warhead on its own territory. Would you assert that doing so would also be legal/lawful because it would be "a power reserved by the states and people?" In point of fact (as demonstrated by this reductio ad absurdum)there are non-prohibited acts that a state might hypothetically consider that infringe so intimately with the interests of other states as to be rather clearly not a "power reserved by" them. The federal government is hardly prohibited from acting on those communal (i.e. "federal") interests by... say for example... preventing such activity by force of arms.
To quote Justice Antonin Scalia, " If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, 'one Nation, indivisible.')"
Now I know you probably consider Scalia a progressive commie... but might not his opinion on this issue have some small weight of authority?
So again... other than pointing to an amendment that is actually completely silent on the issue, where in the Constitution do you find that secession is legal/lawful? Exactly?
I might see a few states do this over AZ and I will leave it at that.
Lets see its about economics and race... good change it might happen.
Not a chance, and I'd offer to place a gentlemanly wager on that. The unfettered access to the US market is a huge asset, economically speaking.
Let's assume that Arizona were to secede and the Federal Government said "Durn, we never really read the 10th, silly us. Well, Bon Voyage."
First, Free Arizona would have to set up all the entrapments of nationhood: Time to get some diplomatic representation, issue passports, start making trade agreements, build themselves a military defense (No, you don't get to keep the US Armed forces. Not yours), and generally speaking take over the tasks currently handled by the Feds. Oh, and they'll have to open a mint, establish a currency and get the international market to agree on an exchange rate. This stuff is expensive. And, no offense, the negotiation position on the open market isn't quite the same any more.
"But wait!", you say, "they'll no longer have the yoke of Federal taxes." True, but the thing is, for each $1 Arizona puts in the pot, they tend to get about $1.15 - $1.20 back, so that's not really a great proposition.
This is where we take a look at a map and realize that everything Free Arizona wishes to buy or sell either goes by air, through the US or through Mexico. Time to negotiate import/export tariffs. With either the US (who may be alittle mifed) or - Mexico.
Do you begin to see the problem?
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