Re: Was Secession Legal? Part 12
>Nothing else. If I delegate “power of attorney” to you, you are to act on my behalf. If I take back that “power of attorney”, you can no longer represent me. If a State delegates certain listed powers [Art I, Sect 8] to the national government, and then changes it’s mind and withdraws the delegated powers, to be resumed by the State government, that is secession.
Is it? In one of your earlier messages, you yourself reminded us that the Constitution contains the following provision: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens of the several States” (Article IV, Section 2).
This clause does not appear to be a delegation of power to the national government. Would it be your contention that after a state had, by seceding, withdrawn all of the powers it had delegated to the national government, this it was still subject to the authority of Article IV, Section 2 of the Constitution of the United States? If you are not willing to say that the this provision remained in force in the seceded state, then it would appear that secession must be something more than merely the withdrawal of delegated powers from the national government Moreover, as your vigorous defense of the Fugitive Slave Law of 1850 has demonstrated, you stoutly deny that any state has the right to withdraw any particular power delegated or allegedly delegated to the national government; it has only the power to withdraw all of them.
I might also invite your attention to Article I, Section 10: “No State shall … grant any Title of Nobility,” and Article I, Section 9, “No Title of Nobility shall be granted by the United States.” Here we have a particular power, the power to grant title of nobility, which is expressly denied to both the state and national governments. Could a state that had seceded grant titles of nobility (if it wanted to) or could it not? The power to grant titles of nobility, not having been delegated to the national government, is not one that could be “withdrawn” and “resumed” by a seceding state. Was a state that seceded still bound by this clause of the Constitution of the U.S. as a matter of law?
>You claim that the statement you quoted from the Virginia form of ratification referred to some right of the “several” states, and not some right theoretically belonging to the people of the United States in some collective capacity… Nothing “collectively”. As I have said, the Commonwealth of Virginia can not speak for the State of New York, but the Commonwealth of Virginia can and does speak for the people of Virginia. When one State claims the right to decide for itself, based upon the wishes of the people of that State, the same right belongs to all the member States within the compact of union, moderated only by the “supreme law of the land”, the US Constitution. When a State withdraws from the compact of union, the US Constitution no longer applies to that State.
First, as I have demonstrated above, that last sentence would be true if and only if secession is something more than simply a withdrawal of any and all powers delegated to the federal government, as implied by your power of attorney model. The Constitution could no longer apply to the state if and only if those clauses of the Constitution not related to delegations of power to the federal government also do not apply to the state. That’s where and why your analogy between secession and withdrawal of power of attorney breaks down completely. But of course elsewhere in this discussion your definitions of secession are contradictory. At some points you refer to it as a withdrawal of delegated powers from the federal government — but above you call it a “formal withdrawal from the union,” which is something quite different.
Second, if the Commonwealth of Virginia cannot speak for the State of New York (or South Carolina, or Alabama), but only for the people of Virginia, as you say, then any right of secession derived from a claim supposedly enunciated in Virginia’s ratification instrument cannot be held to be applicable to any state other than Virginia. Virginia cannot speak for South Carolina or Alabama, and therefore cannot assert any rights or supposed on their behalf.
Moreover, once you acknowledge that the Constitution is the supreme law of the land, as you (correctly) do here, then admit a fatal flaw into your whole argument. Virginia can only speak for Virginia — but Virginia can’t even speak for Virginia if, in so speaking, it contravenes the supremacy clause. Assuming (a dubious assumption, made purely the sake of argument) that the Fugitive Slave Law was constitutional, Virginia could not refuse to permit the return of fugitive slaves from Virginia “while it was in the Union,” regardless of the wishes of Virginians. Neither could it grant titles of nobility, regardless of the wishes of Virginians. What makes the flaw fatal is that the supremacy clause states that it applies “any Thing in the Constitution or Law of any State to the Contrary notwithstanding.” Thus, when Virginia enacted an ordinance of secession (which effectively became part of the Virginia constitution upon ratification), the Constitution was, by its own terms, still the supreme law of the land in Virginia. Virginia’s ordinance of secession, albeit reflecting the clear will of the majority of the people of Virginia if the ratification vote was any indication, was not sufficient to lead to the a situation in which “the US Constitution no longer applies to that State.”
>I still do not understand what you are trying to say. The federal government was not enforcing the “Fugitive Slave Act” at the northern States. That was a bone of contention with many Southern States. That can be interpreted as an “injury” to the people of that State.
That is simply not true. The federal government between 1850 and 1860 had mostly been dominated by Southerners supported by Northern “douhgfaces,” and it was indeed enforcing the Fugitive Slave Law. The bone of contention was that Northerners were resisting, or supposedly resisting, the enforcement of Fugitive Slave Law. There was, however, not one single case in which a person claimed as a fugitive slave had been freed by a state personal liberty law after the Fugitive Slave Law was invoked, and only a tiny handful of cases in which a person claimed as a fugitive slave had been freed by mob action after the Fugitive Slave Law was invoked.
>Your statement is so convoluted that I can not make heads nor tails of it.
When New York ratified the US Constitution, she, like every other State, delegated a ‘portion’ of her sovereignty, which had been granted to her by the people of New York State, to the federal government.
Now THAT is a convoluted statement, and one somewhat at odds with your statement in a previous message, with respect to the Articles of Confederation, that “It is important to note that certain powers were delegated to the federal government but not abandoned. Sovereignty always rested in the citizens of the free and independent states.” Now, either it was the case that what New York had delegated to the federal government when it ratified the Constitution was “sovereignty” or it was something else (like “the power to act as an agent of New York in the matter of fugitive slaves.” If New York had indeed delegated any portion of its sovereignty to the federal government, then, certainly, New York could have no right withdraw that grant at will. Sovereignty in that matter no longer resided with the people of New York, but with the federal government of the United States . If, on the other hand, there had been no grant of sovereignty by New York, then the government of the United States could not return fugitive slaves from New York once New York’s permission had been withdrawn, and New York didn’t have to secede in order to withdraw it. Comprende?
>If the federal law, promulgated under the US Constitution, stated that “fugitive slaves, where ever they may be, must be returned to their owners” and the State of New York failed to agree to go along with that law, then the State of New York would be in violation of US Constitutional law. The State of New York can not pick and choose which federal laws to obey and which to ignore.
Indeed it can, if New York remained and remains under the Constitution an entirely sovereign state. However, if it has “delegated” any portion of its sovereignty, then one cannot argue that it has the right to secede because it is an entirely sovereign state. You simply cannot have it both ways (though clearly you wish to).
>Except that the US Constitution, and laws made pursuant thereto, are the “supreme laws of the land”. The people are still absolutely Sovereign and can recall and resume those delegated powers from both national and State governments, and form new ones, more to their own liking. The only difference is that they will not be under the US Constitution and laws made there under.
Their ability to recall those powers is in fact absolutely precluded by the fact that the Constitution and (federal) laws pursuant thereto are indeed the supreme law of the land. They remain the supreme law of the land even if a state enacts an ordinance of secession. The notion of the Constitution and laws of the United States as supreme law is contrary to the notion of absolute state sovereignty. What the state sovereignty argument fails to explain is how a state possesses the residual sovereignty to “resume” the sovereignty that the state does not possess. – Gary Charbonneau
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