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Tenth amendment advocacy is popular now as the result of a delusional minority seeking some way to vent its needless frustrations. These at times remind me of rather young children packing a peanut butter sandwich and a juiice-box into a backpack in advance of running away from home and the abject "tyranny" of perfectly loving and reasonable parents.
Do you mean to imply that the Federal government is akin to loving and reasonable parents, while the citizenry in general and those comprising the representatives of the several states who feel the need to re-ascert the 10th are spoiled children?
Frankly, I've read some pretty lame brained comments on this board from time to time ... but the proper adjective for this bovine excrement escapes me.
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Originally Posted by TKramar Since he was never convicted, why was he imprisoned? What would he be pardoned for, since he was not convicted. In effect, he was punished for treason, even if never legally convicted. Just as anyone we're holding for an indefinite time as...what's their crime again?...without a trial are effectively, if not legally convicted. You could call them prisoners of war--if there was a official, declared war going on, but such is not the case.
Lincoln had many people illegally arrested, most for simply saying something negative about Lincoln or writing a critical article or letter. The SCOTUS found it unconstitutional and his action of suspending habeas corpus unconstitutional, and Lincoln attempted to have the chief justice arrested (no one would follow the orders).
Jefferson Davis was but one victim of illegal imprisonment. Lincoln illegally executed some, merely for being critical of the government.
When Honest Abe began his term the so-called "Peace Democrats" wanted to make a truce with the South by offering a truce. Actually their interest was an early on concern to assert States' rights. History buffs know these people as the "copperheads" With Congress not in session until July of that year, Lincoln assumed all powers not delegated in the Constitution, including the power to suspend habeas corpus. What must be stated here is that, wrong or right in hindsight Lincoln honestly thought that suspending habeas rights unilaterally and assuming all 'non-delgated' constitutional powers was THE WAY to save the Union. Subsequently the copperheads criticism of him provoked him to suspend habeas corpus throughout the nation and many of the copperheads were jailed. One reason being that they were actively coercing people not to enlist. Lincoln so believed that...THAT SINGULAR ACT, which he considered a supreme disloyalty to the integrity of the Union, justified them being held under martial law authority.
In reflecting upon our history it is disingenuous to merely excerpt 'lifted content from sources' without understanding the context of the tempre of the times and the stresses in this case upon Lincoln. His primary dedication, at all costs, was the salvation of the Union. I do NOT use that as a justification for his behavior. Merely to set his behavior at the time in the proper context. In the end though it must be FAIRLY stated that he used all of his presidential powers in a negative way to get what precisely what he wanted. That must be acknowedged if we are to similarly judge this current President by those very same standards. And I do so.
After reading quite a bit of the debate here, there are a few schooled individuals in law with a more thorough background in constitutional law than I could possibly claim. Yet, does not the entire debate resemble a bevy of counselors offering birth control advice to an already pregnant teenager?
To debate the constitutionality of any given law or act in today's climate of corruption simply leads the deluded masses to further delusion. The reality is that the constitution IS NO MORE, or at least to the extent that we might find protection from the criminals currently infesting Washington DC.
Let's look at the evidence ... recent evidence ... Iraq and Afghanistan. These two undeclared wars of aggression based upon lies are clear violations of the constitution, with grounds for both the Bush and Obama administrations, as well as the congress subject to criminal prosecution and removal from their respective offices. You'd have a hard time filling a minivan with congressmen not complicit in these overt, clearly unconstitutional acts and the associated high crimes attached.
That holds true for the Supreme Court as well. There is no functioning Supreme Court ... just a band of political appointees engaging in criminal conduct, which to any casual observer, is evident.
Such debate makes for interesting philosophical discussion, but don't expect any one of these critters in DC to even whisper "Constitution", as the majority would find themselves behind bars, or worse, should their oaths be held to scrutiny.
With that said, the right for a state to withdraw from the compact it freely entered into with the United States need not be specifically enumerated in the constitution to be considered a valid, legal right, when denial of such a right would be repugnant to the very foundation, intent and laws of the constitution.
Moreover, when foundational principles and the various constitutional laws are being routinely and systematically violated by those who swore an oath to protect and defend it, and the same refuse to take action to remedy such unambiguous violations as they are also lawfully bound and obligated, then there is no legitimate compact to withdraw from, nor would a state be obligated to abide by any such prohibition to separate even if such language actually existed.
There is no foundation for legitimate argument in either constitutional law, common law, or contract law that would bind one party to an agreement that was systematically being violated by the other ... especially when there are damages associated with those violations. The argument is simply impossible to maintain.
Perhaps this is why no such specific language was included in the constitution? Maybe the founding fathers assumed that even the feeblest mind would conclude that one party could not be forced to stand still and accept being clobbered on the head by the other? Could it be that simple?
That there is no provision in the constitution to specifically allow the use force against one or more of the several states in order to maintain that Union didn't stop Lincoln from doing so, but his actions didn't establish such a right either. The civil war is just another clear example of federal tyranny imposed on the states for which the constitution prohibits by nature and existence.
C'mon now Tex. So you're conceeding that the Constitution is no more already and not even worthy of respect. I make that observation by your comments. Why not inhale the barrel and call it quits then? I mean...how the Hell do you sustain yourself with your attitude. What get's you up and percolatin' in the morning? Damn! between the illegals streamin' 'cross the southern border and the Yankees infiltratin' across the Red crossings what is there to keep the old candle burnin'?
Since I'm an old son of Texas in my former lifetime I couldn't sustain myself if'n I had such a poor hitch in m' git-along, don't-cha-know! So I'll just raise a cool Pearl to y'all as I git back with olde Tommy 'n Bob raisin' the dickens here as they tear it up on I Ain't Got No-baaa-ahdy. YEEEE..haaaa!
C'mon now Tex. So you're conceeding that the Constitution is no more already and not even worthy of respect. I make that observation by your comments. Why not inhale the barrel and call it quits then? I mean...how the Hell do you sustain yourself with your attitude. What get's you up and percolatin' in the morning? Damn! between the illegals streamin' 'cross the southern border and the Yankees infiltratin' across the Red crossings what is there to keep the old candle burnin'?
Since I'm an old son of Texas in my former lifetime I couldn't sustain myself if'n I had such a poor hitch in m' git-along, don't-cha-know! So I'll just raise a cool Pearl to y'all as I git back with olde Tommy 'n Bob raisin' the dickens here as they tear it up on I Ain't Got No-baaa-ahdy. YEEEE..haaaa!
Happy Days...Tex
I never once even insinuated that the Constitution isn't worthy of respect, quite to the contrary. I'm just saying you aren't going to see these criminals abiding by it ...
And there ain't nothing wrong with my giddy-up ... sorry to hear that you need to live in a fantasy world to make your coffee taste good in the morning.
Mine tastes just fine, and so does the truth ... or rather, I find a good cup of truth, no matter how bitter, easier to swallow than a barrel of lies?
You did open with this and I've highlighted in bold what I would consider statements indicating that "the Constitution is no more already and not even worthy of respect", which is how I described what you 'appear to' indicate:
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After reading quite a bit of the debate here, there are a few schooled individuals in law with a more thorough background in constitutional law than I could possibly claim. Yet, does not the entire debate resemble a bevy of counselors offering birth control advice to an already pregnant teenager?
To debate the constitutionality of any given law or act in today's climate of corruption simply leads the deluded masses to further delusion. The reality is that the constitution IS NO MORE, or at least to the extent that we might find protection from the criminals currently infesting Washington DC. (Couldn't be more clear here, despite your added qualifier.)
Let's look at the evidence ... recent evidence ... Iraq and Afghanistan. These two undeclared wars of aggression based upon lies are clear violations of the constitution, with grounds for both the Bush and Obama administrations, as well as the congress subject to criminal prosecution and removal from their respective offices.(Totally incorrect analysis, but if you're one of those 'hung up on WMD guys' you likely wouldn't be interested in the facts. Would you care to refresh me with FACTS?) You'd have a hard time filling a minivan with congressmen not complicit in these overt, clearly unconstitutional acts and the associated high crimes attached.
That holds true for the Supreme Court as well. There is no functioning Supreme Court ... just a band of political appointees engaging in criminal conduct, which to any casual observer, is evident.
(You don't leave much room for doubt here as to your sentiments and they are wrong to boot. You're entitled to them, but wrong is wrong. What criminal conduct? I don't call something "criminal conduct" just because I disagree with the decision. Do you?)
Such debate makes for interesting philosophical discussion, but don't expect any one of these critters in DC to even whisper "Constitution", as the majority would find themselves behind bars, or worse, should their oaths be held to scrutiny.
With that said, the right for a state to withdraw from the compact it freely entered into with the United States need not be specifically enumerated in the constitution to be considered a valid, legal right, when denial of such a right would be repugnant to the very foundation, intent and laws of the constitution.
Moreover, when foundational principles and the various constitutional laws are being routinely and systematically violated by those who swore an oath to protect and defend it, and the same refuse to take action to remedy such unambiguous violations as they are also lawfully bound and obligated, then there is no legitimate compact to withdraw from, nor would a state be obligated to abide by any such prohibition to separate even if such language actually existed.
There is no foundation for legitimate argument in either constitutional law, common law, or contract law that would bind one party to an agreement that was systematically being violated by the other ... especially when there are damages associated with those violations. The argument is simply impossible to maintain.
Perhaps this is why no such specific language was included in the constitution? (There is ALL MANNER of "specific" and binding, I may add, language in our Constitution.) Maybe the founding fathers assumed that even the feeblest mind would conclude that one party could not be forced to stand still and accept being clobbered on the head by the other? Could it be that simple?
That there is no provision in the constitution to specifically allow the use force against one or more of the several states in order to maintain that Union didn't stop Lincoln from doing so, but his actions didn't establish such a right either. The civil war is just another clear example of federal tyranny imposed on the states for which the constitution prohibits by nature and existence.
As a tide of other demands on my time has ebbed for the moment, I return to tie up a few loose ends.
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Originally Posted by TexasReb
Again, we will just have to agree to disagree on this one. I stand by my original contention. That the dicta had no binding force in terms of precedent.
Dicta never have precedent. You are simply allowing yourself to be confused on what comprises dicta. Breifly put, they are side commentary not germane to the legal arguments asesmbled and relied upon in deciding the issues raised by the case. Often they are physically put aside into footnotes. At times, they are not. In Texas v White, the status of Texas at particular points in time is a central issue of the case. Nothing that Chase wrote on that matter may be considered dicta unless it was plainly written as parenthetical to his lines of reasoning. At its core, this "dicta" argument is based on a super-expansionary definition of the term raised only for purposes of evading the plain implications of the precedents established in the decision.
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Originally Posted by TexasReb
BTW -- Texas was under Reconstruction Rule at the time the case was filed, so it is kinda up in the air what the powers that be had in mind. And as Coon Dog pointed out, Chase was hardly a dis-interested party in the outcome. He was a rabid-anti-secessionist and like others of the ilk, treated the Southern states as states when it suited, and as conquered subjects when it suited.
Everyone had an opinion. Neutral parties were nowhere to be found. This does not suggest an absence of able jurists. Use of such words such as "rabid" and "ilk" suggest that your own opinion should be disqualified as biased if Chase's should. The states of the CSA chose secession. They then chose to prosecute a hopeless war which they lost. Particularly by the standards of the day, they were treated well in defeat, but it would in any case be necessary to keep the administrative aspects of a post-war reunification program distinct from the legal particulars pertaining to the state of the union. This Chase did by separating the state of Texas itself from the unlawful goverment that had bene for a time able to operate within it.
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Originally Posted by TexasReb
The Pledge is not law of the land, anyway.
No, of course not, although its content lately has been. The point was raised only to illustrate further the dominant continuum of thought opposed to the idea of secession that ran through the entire 19th century.
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Originally Posted by TexasReb
It is not cheating, and I think we are coming the full circle here. It is wrong to frame the question as where is a state given the right to secede? The way to put it is where is the federal government given the authority to prevent it. It has been pointed out many, many, times on this thread of the vast powers retained by the soveriegn states as opposed to the specified and limited ones granted by the federal government.
It is certainly cheating. No power that does not exist can be either vested in the federal government or reserved to the states. The reservation of the 10th Amendment is simply being used to argue for the existence of powers that are imaginary based solely on the notion of their not having been vested in the federal government. This argument fails on its face.
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Originally Posted by TexasReb
Fair enough, but as you know though, the AOC was replaced by the Constitution which contained no such wording.
The Constitution was not independently drafted by outsiders seeking to form a new government. It was drafted at a Convention called for under the Articles for purposes of coming up with amendments to the Articles that would allow the federal government to function more effectively and efficiently. The Constitution is, in effect, simply an amendment to the Articles that reads "In place of all beginning with Word One of Article One, insert the following", even though extensive selections from the Articles are repeated verbatim within the Constitution. There was no thought here of creating a new nation. One already existed. What they were producing was a new set of operating instructions.
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Originally Posted by TexasReb
This relates to the matter addressed concerning the AOC. I think we all agree (as Doc pointed out) that certainly the countries INTENDED and desired for the union/confederacy to be perpetual/permanent. But this is more than offset by the voluntary nature of union and underpinnings of the American Revolution and beliefs of the founding fathers as they saw the relationship of the governed to government.
This is wishful thinking. There isn't the slightest hint of the union's having been intended at any point as a temporal association of convenience that one could drift into and out of as one might find advantageous from time to time. There is every evidence that a perpetual union was knowingly and deliberately contemplated and established. While he could have done so at considerably more length, this is the obvious state of the matter that Chase laid out in Texas v White.
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Originally Posted by TexasReb
There really wasn't...for the longest time (a true debate over it).
Why the caveat? There was discussion of both nullification and secession throughout the first half of the 19th century, but it was a lopsided one, as those arguing in favor were easily outnumbered and outgunned. That situation has not changed.
The prevailing consensus in the North was letting the South go in peace (which was all they wanted to do, anyhow). Lincoln knew this well...which was why he provoked the incident at Ft. Sumter. That way he could unite northern opinion for his invasion around the issue that U.S. honor had been insulted. It was strategy which -- I admit -- worked as planned.
The prevailing consensus in the North was to avoid war. The South however was insistent upon it from the moment Lincoln was elected. Lincoln did not provoke the shelling of Fort Sumter. Anderson had moved his troops there only because of the mounting certainty of another southern attack and the difficulty of defending himself at Fort Moultrie. South Carolina had after all already fired four months earlier on a transport ship seeking to resupply the federal garrison forcing it to turn back. The day-and-a-half long bombardment of Fort Sumter was ultimately initiated by junior officers in response to what they deemed to be insufficiently prostrating conditions for surrender of the fort as issued by Anderson. Lincoln certainly used the bombardment-of-choice at Fort Sumter in calling for the use of force in preservation of the union to be brought to bear against the use fo force for its dissolution. But he hardly provoked that attack. No provocation was necessary It was an attack looking for an excuse to happen.
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Originally Posted by TexasReb
Sure, it is the nature of the beast, so to speak, that some segment of the population will always be underrepresented in a federal republic. However, I don't think your comparissons of issues today are quite on target with the way it was then...
You're off into the weeds again. If it is the case as you concede here that a representative republic ever condemns some portion of the population to be governed against its will, then no selfish and trivial petulance such as opposition to Bush's invasion of Iraq or disapproval of Obama's intent to reform health care financing can be argued as rising to the level of reason for dismembering a representative republic. And that is all that these nouveau-10th Amendment types seek to do.
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Originally Posted by TexasReb
There was differences between the North and South which were fairly evident from the beginning. In fact, a good book on the subject is "Cracker Culture in the Old South." It was written by the late Dr. Grady McWhiney of Texas Christian University, and his theses is that those animosities traced back to the old country. They didn't much like each other to begin with! LOL
No one needs a book. There are and have always been regionalisms and factionalisms in every republic and every other form of state. This goes without saying. A quick look at the vehement and sometimes violent history of debate over something so simple as daylight savings time should be enough to confirm that. Even such heartfelt bickering however hardly stands as any legitimate justification for US balkanization. It's as if having won the Cold War, you now want to emulate the situation of those who lost it. What sort of silly preference is that?
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Originally Posted by TexasReb
But revolution generally involves secession and a declaration of independence. For sure the American Revolution did.
Revolution involves revolting. I don't hear talk of that. You'll need to declare your revolution and take up arms, using those for purposes of overthrowing a corrupt government. But that's not at all what I read about in the papers. People actually claim to be able to declare themselves exempt from and off limits to federal law and authority and thus to be done with it. That's what's not allowed. There is no right to simple secession and there never has been.
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Originally Posted by TexasReb
Something else to consider, is that Salmon Chase was under no illusions. Concerning the upcoming trial of Jefferson Davis on charges of treason, he strongly advised Edwin Stanton to "cease and desist". As he put it: "If you bring these leaders to trial, it will condemn the North, for by the Constitution, secession is not rebellion...His (Davis') capture was a mistake. His trial will be a greater one. We cannot convict him of treason."
While popular enough in separatist circles, the authenticity of the quote is not well established. It is included but not sourced in the Civil War trilogy of Shelby Foote, novelist turned historian and a southern sympathizer, but it gets no better than that. Authenticity aside, secession is not rebellion by the Constitution. Rebellion is grouped with insurrection and other crimes as was previously noted. Secession is not dealt with at all, for reasons that were understood at the time and that Chase aptly enough summarized seventy years later.
As for Jefferson Davis, it is well to remember that early evidence suggested a connection to the assassination plot and there were widespread rumors of pending attempts to rescue him. The terms of his early confinement were somewhat strict on these accounts. These were eased as time and a better understanding unfolded, to the extent that he was able to live in the company of his family for months at a time. And it was Chase again who signed the order for surrender of Davis to the custody of the Supreme Court from which he was released on bond posted by prominent Northerners and Southerners with the entirety of all cases against him subsequently being dropped. Davis was able to live out his life in traveling and writing, and his 1889 funeral would be one of the most florid events ever seen in the south. None of this relates however to an imagined right of secession. It relates to the exigencies of seeking to bind up the nation's wounds...wounds which some even today will refuse to see healed.
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Negativity from a GuyNTexas!
I couldn't sustain myself if'n I had such a poor hitch in m' git-along, don't-cha-know! So I'll just raise a cool Pearl to y'all as I git back with olde Tommy 'n Bob raisin' the dickens here as they tear it up on I Ain't Got No-baaa-ahdy. YEEEE..haaaa!
