Saturday, June 5, 2010

Questions and Answers

From Confederate Digest:

Saturday, June 5, 2010

Is it legal for a state to withdraw from the Union?

By Bill Miller

Chief among the top five most frequently cited arguments against the right of a State to withdraw from the Union are ill-defined assertions that, “It’s illegal for a State to secede,” or “Only Texas has the right to secede.” These, and other such vague pronouncements, all imply the same thing; that for some unspecified reason—more than likely it’s just an assumption—but nevertheless, the opponents of secession claim it’s just plain illegal. Nothing specific mind you, just that it’s illegal. Even Abraham Lincoln, without providing specifics, said during his address to the emergency secession of Congress on July 4, 1861:

The States have their status IN the Union, and they have no other legal status. If they break from this, they can only do so against law, and by revolution.

So how does one counter such ambiguous arguments, arguments without any logical reasoning that can be specifically addressed and rebutted? Perhaps the best response is provided by simply reviewing the fundamental rights and principles our States have always had to peacefully withdraw from the Union.

There are three grand principles our States can call upon—either one of which can be used to justify secession. If one of these principles does not seem to fully justify secession, then another one will do. Again, it only takes one of the three to get the job done. The first of these principles is based on the Constitution, and if the Constitution prohibits a State from seceding.

Is secession legal per the Constitution?

The Constitution is nothing more than an agreement (sometimes referred to as a Compact) between the States, but this agreement does not address the withdrawal of a State from the Compact nor does it contain any terms and conditions should a State choose to withdraw. Generally, if an agreement is without a termination clause, then it is considered an agreement at will, and therefore any party to such an agreement can leave with only a reasonable notification of intent to withdraw.

Furthermore, the Constitution specifically lists in Article I, Section 8, all delegated authority assigned to the federal government, and it’s important to note that approving the withdrawal of a State was never a power delegated to the federal government. Therefore, the federal government is absent any authority to dictate the terms of withdrawal from the Union, and as such, the States, and the States alone, decide the issue for themselves, as further guaranteed by the Tenth Amendment.

Also, there is no underlying tenet of contract law requiring a party to remain committed to an agreement that has been repeatedly violated as has our Constitution. The unauthorized actions of the central government today bear little resemblance to the limited authority delegated by our Founders in 1787. Who can reasonably deny that our States are not well within their right to withdraw from such a dysfunctional and out-of-control agreement?

These three fundamental principles: the Tenth Amendment guarantees to each State, the Constitution being a “contract at will,” and the repeated and frequent violation of the terms of the Compact are enough to insure that a State has the unfettered right to decide for itself if it is to remain a party to the Compact. But if one is not fully convinced that the Constitution allows for a State to secede from the Union, then either the Declaration of Independence or a State’s sovereign authority can be asserted as the controlling elements of State secession.

Is secession legal per the Declaration of Independence?

The Declaration of Independence (aka Declaration of Secession) established the right of the people to withdraw from a government not effecting their safety and happiness as one of our Natural God-given rights as so stated:

… that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government …

This natural God-given natural right as proclaimed in the Declaration of Independence enshrines our inherent right to secession. If you believe the colonies were justified in declaring their independence from an intrusive overbearing government in 1776, then you should also acknowledge that our States continue to enjoy that same right today. But if you believe that this unalienable right no longer applies, then the ultimate right of secession can be claimed with asserting a State’s sovereign authority.

Is secession legal per the sovereign authority of the States?

Abraham Lincoln explained it best when he once suggested that sovereignty was, “A political community, without a political superior.” Taken together with the fact that the States created the federal government (not the other way around), the States are therefore in control of the sovereign power—a power without any other higher authority exercising control over their decisions. In short, the States, as the political superior, control their own destiny; they are not under the control of the federal government, an entity the States created when they established the Constitution, and an entity the States can likewise dissolve.

Simply stated, since the States are the superior sovereign entity, the inferior party, the federal government, has no authority to countermand any State decision, such as secession. Even if the Declaration of Independence had not enshrined the inherent right of secession, or if the Constitution contained language prohibiting secession, the sovereign superiority of the States would control and allow the States to decide the issue of withdrawing from the Union.

So, there you have it; there is no doubt a State has a right to withdraw from the agreement they entered into when they joined the Union. That is unless you don’t believe in either the rule of law, our God-given unalienable rights, or the sovereign authority of our States and their people.

See the original article here:

Posted by J. Stephen Conn at 8:17 PM

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