I would certainly appreciate that, DSYoungEsq. If it is the one I’m thinking of ( regarding Texas ), I’ve searched for it unsuccessfully before.
For precisely the reason you stated. Congress has the power to admit new states to the Union. It says so in Article IV, Section 3 of the Constitution. But nowhere in the Constitution is Congress granted the right to reverse this process. By your logic, the Senate should be able to remove Cabinet appointees since they must consent to their appointment. But the Senate clearly has no such power.
My bad. I thought rudimentary knowledge of the Constitution would have provided proof enough.
As I’ve said, ad nauseum, Congress does not have the power to consent to secession because no such power is given them by the Constitution. The best that could happen would be a resolution authorizing secession, but such a resolution would not carry the force of law.
There’s 200 years of federal case law dealing with the 10th amendment and federal jurisdiction, but I don’t feel compelled to research it all for you right now.
The Supreme Court declared in Texas v. White, 74 U.S. (7 Wall.) 700 (1869) that the State of Texas, having been admitted to the Union in 1945,
It should be noted that Justice Chase, in issuing this opinion, does not cite any particular language in the current Constitution, other than the Preamble. He does allude to the clause in the Articles of Confederation regarding a “perpetual” status. You can find his reasoning starting at p. 725.
The case is difficult to search out primarily because it doesn’t deal with any particular language in the Constitution. My old Con Law hornbook buries it under a discussion of “Other Sources of Federal Power.” The case itself deals with a suit by the State of Texas, initiated before the Supreme Court under its original jurisdiction, to prevent certain people who held federal bonds, owned by the state prior to the outbreak of the Civil War, but ostensibly sold to them by the rebellious government during 1862, from redeming them. It is not, therefor, a case that one can quickly access by persuing footnotes to learned discussions of vital constitutional law (which explains why I couldn’t find it last night, er, that is, this morning at 12:00 AM).
The issue of secession came up during the case as follows: the standing of Texas to bring suit was challenged. Chief Justice Chase reasoned that, 1) Texas existed as a “state” even though she had attempted rebellion, relying upon numerous references in the Constitution to hold that a “state” is not just a set of political institutions, but also the territory and the people contained therein; 2) Texas did not leave the Union by its attempt to legislate itself out of the Union; 3) Texas at the time the suit before the Supreme Court was authorized had a constitutionally legitimate government composed initially of people appointed by the President, later by those installed by military authorities under the authority of the Reconstruction Acts passed by Congress, each of which was a legitimate act of the federal government in guaranteeing the State of Texas a “republican form of government” under Section 4 of Article IV.
The conclusion that Texas had standing was not unanimous; it was a 5-3 decision, with Justices Grier, Swayne and Miller objecting on the ground that Texas was not a state of the Union as of 1868, having been declared conquered territory by the Congress. Justice Grier, who articulates this position in his dissent, in essence would hold that, so long as Texas is precluded from participating in the federal government as states do, she is not a “state” as that term is used in the Constitution. Justice Grier drew as parallels the status of the various territories of the United States not yet admitted to the Union as states; he specifically mentions the territory of “Dacotah.”
But Justice Grier is not articulating a judicial opinion on the lawfullness of secession, or on the true legal status of Texas as a “state.” He is merely asserting that the Court has no right to treat Texas as a “state” when Congress has said it is not a “state.” It is, for him, and for the other two who agree, a political question the Court should steer away from.
So, in short, we have a determination from the Court that a state, once admitted, is a permanent member of the Union. This is not based upon a textual interpretation, but upon an examination of the history and quality of the Union. The dissenters don’t disagree; they simply don’t want to bump heads with the Congress as it attempts to reconstruct the South.
Thanks DSYoung.
This thread has been very interesting. I’ll repost my questions because they seemed to have focussed discussion, apologies to OP.
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What is the consensus on the AofC? Have subsequent act of ratifying the Constitution repealed the AoC, or is it still a colorful argument that it was not validly repealed and remains in force?
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What is the authority for the proposition that a State can not seceded? The Constitution seems at best silent on the point. I have always thought it odd that the North attacked the Confederacy upon secession. I think the attack on Ft. Sumter was a pretext by the North. I mean, if California decided to secede from teh U.S., or Quebec from Canada, would a war ensue?
“As no historians, or political scientists, or lawyers, or anyone in the executive, legislative, or judicial branches at any level at time in our history treat the AofC as if they are still in effect, I think we have to consign killjoy’s point of view to minority status.”
Well, its obvious to me now that his view is minority status, but might it nevertheless be correct? I am undecided.
- Well, silence as to secession is not persuasive to me either way. Someone analogized teh Constitution to a treaty, which customarily can be rejected by a part at any time. That makes sense to me. Obviously, the States have little actual military power and I am aware the Union attacked the Confederacy, but I never understood why the Union didn’t let them go their separate way, or why the US or Canada would resort to a war to retain California or Quebec if they were intent on seceding.
Wouldn’t this…
…imply that if the other states consented Texas (or whomever) could go its own way?
Certainly, though they would probably have to first amend the Constitution to allow a process to exist.
This question gets to the crux of the matter. The fact that no one recognizes killjoy’s views is the determining consideration. This is the point I first made upthread. The Constitution – and any organic law – only exists to the extent that the population buys into it. (If you want proof, go back in time to Paris, 1789.) The Articles of Confederation are no longer in force because no one considers them in force – this is so regardless of the fact that they were never officially repealed or amended. I think that killjoy’s reasoning is flawed, but put that to one side for the moment. Even if his logic and analysis were correct, his position would still be wrong because the U.S. population and the country’s governmental institutions consider themselves governed by the Constitution and consider the Articles to be nothing more than an artifact; therefore, the Articles are nothing more than an artifact.
It’s the same response I’d give if you refused to pay your income tax because you claimed the 16th Amendment was improperly ratified. You’d be wrong, of course, but even if in some rarefied theoretical sense your arguments were legally correct, you still can’t refuse to pay your taxes, because the government functions on a basic acceptance of the 16th Amendment. OK, fine, maybe some state ratification of the Amendment had a spelling error, and OK, fine, maybe that really does make a difference, but you go ahead and make that argument – you’ll still get arrested, you’ll still get your house seized and sold at auction, and you’ll still get sent to jail. The system is ultimately based on what the constituents of the system believe about it, as determined by the institutions of government that we’ve created in its name. There is no platonic ideal of the Constitution that exists in a cave and which we are striving to uncover; there is only what we build for ourselves.
–Cliffy
Why? If the Supreme Court has already decided that it is constitutionally possible for a state to secede with the permission of the other states, why would there be a need to put a specific process in the Constitution? After all, the Constitution doesn’t lay out a specific process for the admittance of states.
In other words, if it has been interpreted that Congress can give permission for states to leave, why would a specific process be needed?
Cliffy, you have a very persuasive argument up to a point. At some point, the technicalities matter.
If the SCT has said the 16th amendment has been validly ratified, OK its a done matter and everything else is academic. But if they haven’t, then yes the IRS will assess a deficiency etc. but you could appeal it all the way to the Suprement Court.
Getting back to the AofC, you are right, 99.9% of the time this is irrelevant because everyone assumes it was validy replaced by the Constitution. But there remains the possibility that they both have some legal effect. I remain undecided but intrigued.
BTW, Texas is very proud of the fact that they joined the Union by treaty. There have been some other threads here as to the details. This may impact their ability to seceded.
Precisely because the Supreme Court hasn’t so decided. Justice Chase’s comment to that effect is what we would call obiter dicta, a fancy Latin phrase meaning, “nice turn of phrase there, old chap, but quite irrelevant to the case at hand.” Because the issue was not, “Could Texas legally leave the union with the blessing of the other states,” but instead, “Could Texas legally leave the union on its own decision to do so,” any comment regarding the former is just an opinion of the Justice, and has no force of law.
Which is not to say that what Justice Chase said makes no sense. Much as a marriage can be dissolved when the partners agree to let each other go, so, to, would it make sense to allow the states to let a fellow state go if all were agreed upon it. Just how that would happen is unclear, because no provision is made for it (which, by the way, is the strongest argument from the standpoint of trying to figure out just what the Framers intended about permanence that can be made in favor of permanence). But, clearly, the Constitution can be amended, and that process could be used to create an “out” for states desiring to quit. It’s all pretty hypothetical; it is unlikely that any such effort would be made absent some pretty catastrophic or fundamental change in the situation in North America politically.
That’s what I get for being polite. And subtle. Here is the same thing in plain language: killjoy’s belief about the AofC is just plain nuts. It is not correct. Just because one person makes a silly, totally unhistorical argument does not make it correct.
The Constitution is not a treaty. It does not make any sense whatsoever to think of it that way.
And the North did not attack the South. Ft. Sumter was a federal fort attacked by the South Carolinians.
Also, it is not true that “the North attacked the Confederacy upon secession.” Seven states had already seceded by Feb. 1 without the North doing anything.
As for “I never understood why the Union didn’t let them go their separate way,” I just don’t have the strength. Something about tearing the country in two and perpetuating slavery and allowing its spread across the continent and alliances with foreign nations and all that meaningless stuff.
In 1933 the Dominion of Newfoundland was about to default on it’s debts. Under pressure from the British government the Newfoundland parliament voted itself out of existence and effectively became a crown colony again. Until 1949 Newfoundland was ruled by a Commision of Government consisting of a Governor and 3 Britons appointed by London and 3 locals. The only elections that took place during this time were those to the St John’s city council.
has no recollection of ever posting this
alrighty then =)