Reality Chuck take notice: Disaster novels sell big. (If it sells, I want it dedicated to Broomstick and me, for flagging the idea for you! :D)
The Constitution is silent as to whether states have the right to secede. Prior to the Civil War, there were three schools of thought (probably more, but all I remember being taught are these):
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Because the Constitution does not provide a right of secession, there is none.
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Even though the Constitution is silent on secession, getting into the Union is the same as getting out: “New States may be admitted by the Congress into this Union.” [U.S. Const., Art. IV, Sec. 3, Cl. 1.] So Congress can vote a state out.
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States’ rights! If a state wants out, it should just send in its letter of resignation.
The Civil War was a battle between #1 and #3, or, as Broomstick pointed out, a battle between the “is” and the “are.” Is won.
A court can only hear a case over which it has jurisdiction, so as a threshold matter, the plaintiff has to show that em filed in the right courthouse. So a plaintiff could file a case in federal court, and that case could wend its way all the way to the Supreme Court, where every court only considers the threshold question: does this court have jurisdiction over this dispute? So the Supreme Court could hear a case solely on the question of jurisdiction, decide that the federal courts do not have jurisdiction, and kick the case back down to the federal district court, which would then either kick the case out or kick it to state court. The state court could then hear the whole case.
I’m not certain if there is a scenario under which the SCOTUS could find that it lacks jurisdiction, remand the case to state court, then find jurisdiction again after the state court process has worked itself out. I may be missing something obvious, and this is waaay off-topic, so I’ll leave it there.
The states don’t always agree with each other. Prostitution, drug policies, and firearms regulations vary pretty widely from state to state (look up the legal definition of machinegun as it varies from state to state. Montana’s is especially entertaining).
The states also don’t always agree with the fed, either. Basically, the only way the federal government has any power over the states is via the Interstate Commerce clause. So if someone murders 50 people in one state, it’s a state crime, but if someone murders 2 people in two different states, it’s a federal crime. Likewise, if folks in Montana make a firearm that can fire three-shot bursts, that’s not a machinegun… but if anyone tries to sell or ship them out of Montana, watch out.
This is part of the reason people made a bit of a fuss over the DEA cracking down on legal cannibis clubs in California. It seems like an abuse of the commerce clause, since there was no evidence of the marijuana being transported across state lines… ergo, the fed stepping on state’s rights.
Also, abortion is a federal issue because… well because they say it is. States can’t make laws that are unconsistutional… and somewhere along the way the abortion issue got taken into federal courts. The marriage issue hasn’t been taken that high, yet, so it remains a state issue. Eventually a legally married gay couple will move to a state that doesn’t recognize their marriage, sue the state, and take it up through the courts.
then it would be two murders committed in two states, and the murderer would be tried in each state for the crime committed in that state. It becomes a federal issue when there’s, well, a federal issue involved: murder on federal land (i.e., in a national park), or if there is a specific federal law making something a crime (IIRC, carjacking is a federal crime, even if the carjacking remains in one state, because Congress found that carjacking affected interstate commerce, giving Congress the hook to federalize the crime, although I think this was challenged as beyond Congress’s powers).
The U.S Constitution guarantees a minimum set of rights for people. Some rights are explicit (freedom of association, protections against unlawful searches/seizures), and others “flow from” the explicit rights in the Constitution. For example, the first amendment has specific rights that the court found are “privacy rights,” including reproductive privacy rights.
So while the Constitution doesn’t say whether a married couple can use, say, birth control, using birth control is a privacy right, so the state cannot tell me whether I can use birth control or not. Twenty or thirty years later, the courts “found” that the privacy rights in the constitution govern abortion; that is, that the constitution guarantees a woman a certain level of privacy in her reproductive rights, and that means that states cannot forbid all abortions. (But they can limit them in ways that de facto amount to a denial, but that’s another issue.)
The gay marriage debate doesn’t implicate reproductive privacy rights so much as it implicates full faith and credit, equal protection, and interstate commerce. The analogies that people have drawn between gay marriage and the anti-miscegenation laws are interesting; I haven’t seen that before.
Various notes:
Broomstick and Campion gave good answers to this question, but I would add one wrinkle. While it seems clear to me that states have no right to seceed on their own under current law (a question determined on the battlefields instead of the courtrooms), this is the type of question that depends wholly on the practical considerations. It is not something that can be answered in the abstract. If, someday, a state wants to seceed and that state can muster enough power (military, political, economic or moral) to convince the Union to let it go, it will go. So the question of when can a state seceed is answered “Whenever it convinces the Union to let it” – whether it does its convincing through politics or through armed insurrection.
Another point on determining between state and federal jurisdiction – think of the states as having all jurisdiction over everything as a baseline. Then some of that stuff is carved out for federal jurisdiction if and only if 1) the federal government can point to one of its enumerated powers that covers the issue (the stuff in Art. I, Sec. 8 and in the Reconstruction Amendments as I noted above), and 2) Congress or the federal courts choose to exercise that power. As many have noted, however, the Necessary and Proper Clause of Art. I, Sec. 8 has been utilized to expand federal jurisdiction considerably beyond what you might imagine just by reading the Constitution.
Broomstick makes a point that one of the reasons some folk aren’t happy with states’ rights is that gays who marry in Massachusetts might move to South Carolina and force that state to recognize their marriage. (The irony is that these are also people who are almost always identified with the traditional states’ rights consituency because they favor a more restrictive abortion policy than exists at the federal level.) One thing to note here is that advocates of gay marriage often say that in this situation South Carolina would not have to recognize a gay marriage performed elsewhere because of complexities in the interpretation of the Full Faith and Credit Clause and also the existence of some federal legislation on the subject. That discussion is best left to another thread, but I’m not sure Broomstick is correct when he discussed the FF&CC in the context of gay marriage (and his is absolutely the minority position given that people on both sides of the gay-marriage debate read the FF&CC differently), so I don’t want that to be the only view expressed on the thread.
I can’t agree. First of all, while the Interstate Commerce Clause is by far the most expansive federal power, it’s by no means the only one by which the fed can bring its wishes to bear on the states – all of Art. I, Sec. 8 and the Reconstruction Amendments are full of these enumerated powers.
Moreover, I object to your characterization of the cannibis clubs as “legal.” They weren’t legal. The clubs were not criminal organizations under California law, but as this thread makes abundantly clear, California law is never the end of the inquiry. There are federal laws which prohibit marijuana, and these laws apply throughout the country. The drug laws are an exercise of power under the Interstate and Foreign Commerce Clause, and there’s no legitimate argument to be made that drugs do not have implications for interstate and foreign commerce. The fact that a given bud never crossed state lines doesn’t mean that its presence or legality doesn’t have consequences for interstate trafficking. This is a proposition established in the '30’s and has been generally uncontroversial since then.
You may rationally disagree that the drug laws were an appropriate act of federal power, at least as applied in this instance, but many people would say that there was no inappropriate federal infringement on an area of state power, and as a matter of plain language, the cannabis clubs were never legal, becaues they always existed under a criminal-law regime that branded them anathema.
–Cliffy
First cousins can marry in the majority of states. (Not in West Virginia, despite the nasty jokes.)
(Psst. ‘She’ 
)
I keep forgetting that you actually need to know what you’re talking about in General Questions. Tabbed browsing probably doesn’t help, as I jump from threads to thread out of Cafe Society, the Pit, and GQ more or less at random depending on order the new tabs popped up.
See, calm kiwi, even the 'merkins don’t understand the convoluted reasoning. Thanks for the info Campion, Cliffy, et al.
And in Australia, which has a very similar federal system, likewise.
Under our first constitution, the Articles of Confederation (1781-1789) you might say the states considered themselves more like individual countries in a confederation. But under the capital-C Constitution (1789-), no. Certain “sovereign” rights that the states enjoyed under the Articles were surrended to the federal government under the Constitution. The post-Civil War amendments moved the Constitution further in that direction.
(Psst. True, but not relevant to this conversation. No offense received.)
My memory of this discussion in history class is real foggy, but no one has brought up some details I believe to remember. Hopefully someone will be able to elaborate if I remembered correctly.
Now, it is my understanding that when the Supreme Court sets about deciding the constitutionality of whatever comes before them, they do so by examining various documents outside the constitution, including the Bill of Rights, the Declaration of Independence, the Federalist Papers, and other various writings of the founding fathers.* Obviously they will ignore blatant social differences between then and now (like slavery), but still try to do their best to get the spirit of what it seemed our nation was intended to be and apply that to the issue before them. This is as opposed to Congress and the Executive branch, who are more concerned with what contemporary society wants. (And this is a reason why Supreme Court decisions can be quite unpopular–there is every possibility that the Supreme Court could rule gay marriage as constitutional even though 70% of the populace could loathe the idea.)
Getting to the point, one of the “various writings of the founding fathers” is the Kentucky Resolution by Thomas Jefferson. …I just tried to skim it, and that is not working, so I am just going to state what I glean from memory… Essentially the idea he puts forth is that, if the level of communication between the Federal and a particular state government had come to a level whereby the only way that the decisions of the central government can be exercised in the state is through despotism–that is to say that no one in the state is going to do it period unless you physically force them to–then a state has the unilateral right to nullify that law (at the Federal level**.) Judging from encyclopedia articles, it doesn’t look like he specifically mentions secession, but it
Coming up to the Civil War, the idea that “Action requiring despotic control by the Federal government over a state is not valid” added in with the Declaration of Independence:
Between these, one can make a fairly powerful argument that a) A state was meant by our founders to be able to over-rule the Federal government (if everything goes to hell), and b) A body of people (like a state) who are in dealings with a central government that acts on its own power, unrelated to their interests (i.e. everything has gone to hell) then the group can establish its own government. So essentially a state has greater authority than the Federal government and can leave on condition of irreconcilable differences (i.e. everything went to hell***) between them.
However, it is to be noted that both of these documents were written by Thomas Jefferson****, and so this is not a very good sampling of the intentions of the founding fathers (though he is one of the ones people pay more attention to.)
It is my belief that after the Civil War, some laws were paused which specifically discounted a States superiority over the Federal government or its option to leave.*****
Personally, I am of the opinion that without Hamilton, Jefferson couldn’t have been half as important–and you really need to get the word from both of these two at least before you can conclude anything about the spirit of our nation.
But, what any of that has to do with the state of the the EU I have no idea. My only advice is to make sure you have some smart guys–some realistic, some visionary–working on getting everything all right and in time things will come together (or at least provide really good fodder for all the reasons they do or don’t have a right to completely dissolve the whole thing. Certainly this forum will eat it up.)
- Possibly incorrect assertion #1
** It appears to me.
*** Congress members from the North and South were getting into fist fights during sessions–so I think this is really the best wording
**** Well, one can assume a good bit of collaboration
***** But no one has mentioned such. And my only idea would be to start going through the amendments
Another interesting point of our Federal system is that some States have different rights on some things vs. the Federal government, depending on how they came into the Union.
For example, Texas has the right under the annexation agreement, to split itself into as many as 5 states at the whim of the State Legislature, without needing Congressional assent, as other states would.
This is an important point. Because of the history as crown colonies with royal charters and so forth, most states (even though only a minority of present states started as colonies) have absolute authority over all their subdivisions. So a state legislature in many cases has the power to vaporize, combine, etc. cities, villages, counties, within it. Or regulate them in any way deemed necessary. The federal government, on the other hand, has no authority that I’m aware of over these local subdivisions.
Also, while there are city crimes/infractions and city courts (usually parking, speeding, loitering, housing regulations, etc), I think in most states counties do not have the same authority. County commissions merely regulate state laws, and county courts are merely local state courts.
Another separate level of government that most people forget about is tribal government. American Indian tribes have limited self-government, and the status of this government and tribal land is very similar to that of a state, when the tribe deals with the federal government. However, there also seems to be a limited level of state authority in tribal areas. I don’t really understand it, hopefully one of our legal scholars can clarify this in a succinct manner. There are probably some similarities to the Maori in NZ, and aboriginal land in Australia.
Sage Rat is correct that “original intent” is one of the main principles used to determine the meaning of the Constitution and other laws. But the original intent of the authors of the Constitution is not as supportive of the right of secession as he argues. Jefferson did indeed write that the Consitution gave the states a right to secede under certain circumstances. But James Madison, who was more central to the writing of the Constitution than Jefferson, told Jefferson his interpretation was wrong and wrote that states do not have the right to secede.
And they even ended up getting a bonus state. The current Texan borders were set in 1850; the territory that Texas originally consisted of when it was admitted to the US in 1845 is now divided up among six seperate states.
This is why Americans have to be careful about weapons and all kinds of things that might change from state to state. It varies greatly. In some states you have to be a police officer or private detective with all kinds of certifications just to carry a gun in any fashion, and in some states people have the automatic right wear their guns into the banks. It’s a crazy mixed up world.
Nope. Let’s have a cite. Or, alternatively, you could do a search on find the roughly-quarterly GQ threads where this is debunked.
–Cliffy
States are free not to agree on such things. The statutory law is often quite different from state to state.
However, there is still some degree of recognition that uniformity can be a virtue. To that effect, the states have convened the National Conference of Commissioners on Uniform State Laws, who meet to draft laws on all kinds of topics and then lobby state legislatures to adopt them. Often, when they are adopted, it is done with some variation. The California legislature, for example, is notorious for adding in a range of consumer protection, environmental protection, workers’ rights, and civil rights provisions to uniform laws.
The N.C.C.U.S.L.'s most successful project has been the Uniform Commercial Code, which has been adopted in some form in every state except Louisiana.
It’s not as mysterious as you imply. Whenever someone argues that there is a fundamental right at stake that is protected by the U.S. Constitution, that makes it a fit subject for federal courts. The courts then will tell you whether it is or isn’t.
This shouldn’t be a mystery to any American who values being able to make decisions about his or her own sex life without interference from federal or state government.
It started in 1965, in Griswold v. Connecticut, when the Supreme Court struck down a Connecticut law that barred the use of contraception and also barred doctors from telling their patients about methods of contraception. This overturned the court’s decision in Poe v. Ullman (1961), which upheld the Connecticut statute.
Oh, yes, it has. Again, this shouldn’t be a mystery. In Loving v. Virginia (1967), the court struck down a Virginia statute that prohibited marriage between people of different races.
BEEP! BEEP! BEEP! URBAN LEGEND ALERT! The Straight Dope is a bad place to be spreading urban legends.
Texas does not and never has had any right to split into five states. When Texas was annexed by the United States, the law said that the territory would be admitted as no fewer than three and no more than five separate states. In fact, the territory encompassed by the originally annexed Texas Territory is now incorporated into five states – Texas, New Mexico, Oklahoma, Kansas, and Colorado.