Guys, We the People... or We the States? Is secession unconstitutional?

[monorprise]

Personally I agree with Judge Andrew Napolitano, although I would quibble on the exact reasons why.

For example his point on U. S. Constitutions preamble "We the people" being a stand in for "We the States" as a typo is a reference to the idea that States are themselves just individual political community of people.

Hence why the initial draft of the same preamble verbosely lists the people of each of the 13 states separately before being condensed into just referring to all the united States as "the united States" taken as a description rather than as a name.

Additionally his reference to Article 7 at the end of the Constitution is correct, although the full article is:
"The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same."
in other words they didn't want to establish a union without at least 9 states, nor would they they have regarded any state not radiating as a part of the union.

An important distinction as it debunks Lincoln's article of Confederation perpetual union theory as a 9 state union could not have been formed among a "perpetual union" of confederation.

Although to the people who just declared independence from the British empire (an act explicitly illegal under British law), this 'inalienable' right was a no-brainier.

What do you guys think?

[Soteris]

I think this is pretty silly. First of all, saying that "We the people" is a typo is silly considering its importance and the large number of drafts and corrections that has been made to it. It is clearly very intentional and very specific in its wording and the fact that they put a lot of importance on the meaning.

Secondly, unilateral secession is not sustainable on a purely practical level. For example, I as an individual can't secede from my country just because I represent the will of 100% of the people in "my" geographic region. That is silly. Sates are just a larger version of this in a sense but has been granted various extra powers and responsibilities.

They have not however been granted the explicit right to unilaterally secede. Declaring independence is possible but it would probably have to be an agreement with the federal government, most likely by a vote in congress. Otherwise, if nothing else then the government has a duty to protect its own sovereignty as well as its citizens and the whole point of a unilateral secession is that only one side officially recognizes it which means that from the side of the federal government, by its very definition they still consider them part of itself and their own citizens which are now under hostile occupation by a foreign power. A war is as such required by obligation.

[monorprise]

@Soteris said: "I think this is pretty silly. First of all, saying that "We the people" is a typo is silly considering its importance and the large number of drafts and corrections that has been made to it. "

What importance?
I'm afraid your mistaken, a preamble is the least important part of a document having no power at all. The U. S. Constitution's preamble was added late months into the convention almost as an afterthought with little debate or objection. The first draft passed unanimously and was only modified into its current form by Committee of Style (by Gouverneur Morris of Pennsylvania) presumably because it was too long and presumptuous that every state would join. Before being passed without objection or discussion until after the convention.

Really quite arbitrary, but then again it was a almost pointless preamble, something they eventually even stopped bothering to even include in legal documents.

It was the anti-federalist after the convention who picked up on the preamble with objections to their intention, and the federalist who assured them to the contrary. In practice the anti-federalist may have correctly predicted what actually happened, but it was the Federalist argument that the people ultimately bought and agreed to.

[monorprise]

@Soteris said: "unilateral secession is not sustainable on a purely practical level"

Its true, that it is silly for an individual to secede as he effectively imprisons himself, on the little land he has claim to in an indefensible land locked nation of 1.
Political relations of union is not simply following laws but rather the condition of free movement, trade, and commerce with said world. Therefore to secede at all a group must be relatively self-reliant and large enough to defend itself. Otherwise they will be screwed, regardless what the former union does or does not do.

@Soteris said: "States are just a larger version of this[individuals] in a sense but has been granted various extra powers and responsibilities."
This isn't even remotely true, not only did states originate the union, they are to this day still constitutionally sovereign under said union and practicably retain separate independently operating governments.
States have their own executive, legislative, and juridical system:
States
1: Make and judge own laws.
2: Raise their own taxes.
3: Support their own independently operating police to enforce said laws.
4: States even practically maintain their own Militarizes, thou this is partially shared with Washington. Historically there is little to stop a state from withdrawing said sharing, its simply a matter of appointing their own officers and drafting however many additional personal they need just like the Federal goverment does. Historically Washington relied upon the states to do this for them.

In practice U. S. States are independently operating governments.

[monorprise]

@Soteris said: "States... has been granted various extra powers and responsibilities... They[States] have not however been granted the explicit right to unilaterally secede. "

All power originates from the people, We the people formed States among ourselfs on the basis of State constituiton. It was in this capaisty that we either originated or joined the Federal union in which WE agreed to again only grant few and defined power to the goverment of that union under the Federal Constituiton.

The 10th amendment was written to spell this fact out perfectly clearly for all time. Not because it was required (Most federalist insisted it wasn't) but because the Anti-Federalists correctly predicted imperialist like you would invariably come along claiming we lived only by grant of a masters.

[Soteris]

No. The preamble is the most important part. Power or not, its the thing that leads into literally everything else and the part that will be remembered. In fact, its the first 3 words. It was so important that the constitution of USA could not begin without first saying those 3 words.



And not only that, they wrote it bold and large, because again. It was just that important. To say that the one thing they highlighted above literally everything else, was a typo is silly. In fact, the whole preamble is the founding fathers acknowledging that they are lacking, that the best they could ever hope for is to attempt to improve much less actually reach perfection. It is the foundation which everything else stands on such as the clause about how to change the constitution and freedom of speech etc..

They did not worship the government of USA or even the constitution, because they knew it was flawed and had to be corrected over time and that it had to be corrected by "We the people" for who all of this was done in the first place. Again, claiming otherwise is laughable.

[Soteris]

Regarding states and constitutionality of secession, you bounce back and forth between two different definitions of freedom and rights. On one hand you accept that these things are concepts that we just made up and that anything is correct if you have the power to enforce your will on it but on the other hand you start to talk about the systems built into the union of USA which is completely different.

You can talk about how the states used to be independent before the union but that did change afterwards and its also important to address that the federal government is specifically above the states even if the states has some measure of independence and right to self governance. This is not the same as being actually independent and having the choice of secession since that very clearly falls into the area where the federal government has responsibility over the states.

[monorprise]

@Soteris If my intention to enlighten you is more important than whatever I say to do that, then we will at best make no progress, and at worse go backwards.

This is why a preamble is the least Important part of a document, and this preamble was indeed treated almost as an afterthought.
The question was NEVER whether or not We The People authorized the constitution but rather in what capacity it was done, was it as States or as an aggregate whole.

The drafting of this constitution made it clear "We the people" was referring to the People in their capacity as States as actually required by Article 7.

[monorprise]

@Soteris In the world there are 2 different realities which unfortunately conflict. There is the reality of what is right and agreed to, and there is the reality of what is done by might.

The idea of justice and order depends upon our efforts to reconcile that which was done by mere might with that which is right and agreed to, we call that conflict crime. When we stop trying to correct it we have surrendered the law of consent to the law of force.

What actually happened in 1865 was force, not any written law of consent. Just force instigated by a man who didn't want to lose any of the power he felt he was entitled to by electrical victory. As many as 850,000 people paid with their lives for his power. All of us live in the long shadow of force which he had set seriously curtailing our rights subjecting us all to anther kind of ever more dangerous slavery.

So I ask you to find the spesfic clause in the Federal Constitution where our forefathers allegedly ceded to the Federal Goverment the very right of secession/revolution. A right which the exact same people only a decade before had fraught a bloody revolution on the basis of believing to be inalienable... ?

That particular betrayal was never among said 11 pages.
If you payed attention those same people even told you why. Yet you expect me to beleive 80+ years after the fact it was somehow there regardless.

[Soteris]

You are the one who keeps saying that the preamble was a throwaway statement inserted as an afterthought and therefore had a grammatical error or oversight. I am telling you that this is stupid and trying to tell me otherwise is stupid unless you clearly bring better evidence than this and article 7 does not require any such thing from the preamble while we are at it.

But this is honestly besides the point. Even if you were correct, which you are not, you would still be wrong today. Because the constitution is supposed to be interpreted and modified by the people living today. If we are reading it as "We the people" and interpreting it as "We the people" then that is what it means today, end of story. We are not strictly interested in the original intentions of the constitution as much as we are interested in how it is reflected by current society and I challenge you to point out where society agrees on "We the people" means states.

[Soteris]

As for the founding fathers and the right of secession? They literally fought a civil war for it. They very clearly did not believe in the system and was entirely okey with using force for certain things. You are making the mistake in thinking that their intended society would never be expected to resort to violence or an overthrow of the government and that everything would function according to the systems of government.

Furthermore, the federal government clearly has certain responsibilities. For example it is expected that they protect their citizens from other entities which in this case includes the citizens of its member states. As such, it has a obligation to prevent said citizens from being taken by a foreign power by for example a secession and gives them plenty of reasons to declare war and fighting if literally nothing else.

If you can't come to an agreement with the federal government regarding secession then the federal government can't let go of their claims on both the land and the people in question. And again, there is no reason why a contract such as the union would be undone by the same mechanics as it was signed, such as the state itself deciding upon it.

If you asked your founding fathers then it would not be a matter of right or wrong but a matter of you having to fight for what you believed is right and the victor is correct. That is basically part of their philosophy.

[monorprise]

@Soteris The Preamble is a disregardful part of any document... It would literately have the same meaning with or without it.

As to the question of what created the Federal union that is defined in Article 7 of the actual document as the individual States. Just like in the original draft of the preamble listing each of the people's in their separate capacity as States.

As such we know "We the people" is referring to "We the States" in modern language "We the people in our capacity as States" because the States actually created the union as required by Article 7. There was no arrogate "national" popular vote. Indeed such a thing still doesn't exist in any election in this country.

[monorprise]

@Soteris As to how the constitution is interpreted. You are not interpreting anything if you disregard the understanding of the writers and in this case ratifiers (who actually ceded the power) in favor of what you want to beleive.

Your just creating your own rules and dishonestly telling people that is what someone else said. If you honestly beleive that, you are mistaken, if you have reason to know that is incorrect as I have here given you that is called lying.

The reason we the people have the right to interpret the constitution, is the same reason christian have the right and duty to read the bible. If only a few people get to read what was agreed upon, those people can control the same law. Thus in practice there is and may in fact be no law.

An American has the right and duty to read the law for themselfs not simply accept what a politician tells them.

[monorprise]

@Soteris The propose of law is to provide a means to resolve conflicts without violence. It is when said law is violated that violence force is required. To that end we agreed the same people who fought the civil war in 1776 for what they claimed to be the inalienable right of self-determination (secession) did not create in 1787 a new union to suppress said right.

The ones that fought the Civil war in 1865 decades after the last of the original founding fathers passed away were a completely different set of people.

As for the protect your citizens from forign governments argument, that there has 2 problems:

1: Said goverment has to actually be unjustly harming your citizens not simply hosting them otherwise you would be a war with every country that permits you citizens to exist.

2: Those people actually have to be your citizens, in 1861 there was no Federal Constitutional concept of Federal Citizenship, This was not be allegedly introduced until the 14th amendment in 1868 years after the Civil War by the same people who fought it. Even then said amendment only defined Federal citizenship as derived from State Citizenship. Thus both then and now you cease to be a subject/citizen of the Federation when you state does.

It is true there is no reason a contract such as a union would nessarly end by the same mechanics in which it started, only that it terms such as it exist would be honored. In providing no exit clause, the terms of the same Contract left the matter to the people and their states as it explicitly left all other matters.

To do anything else would have been unthinkable to the revolutionaries who wrote that contract, having just fought a war in the beleive said right to secession/revolution was inalienable and thus could not be ceded regardless.

[WindAtMyBack]

The 10th amendment basically says: If the Constitution doesn't explicitly say the federal government can do something, then they can't do it. Furthermore, if the feds are not given the authority, then by default the power rests with the states or the people.

The Constitution explicitly says how new states can join. But it does not say a word about states leaving. So does the federal government have the authority to stop a state from leaving? Or maybe another way to ask it, does the federal government have the authority to compel a state to stay?

I think the answer is no. The feds can not compel a state to stay, because they were never given the authority to.

[Adaeva]

Regardless of the fact that corrupt and evil psychopath Lincoln made war and murdered millions of Americans, of course secession is constitutional. States joined with the provision they could withdraw. Absolutely, secession would greatly increase freedom and prosperity because the bigger the country the more corrupt and evil it becomes.

[monorprise]

Spoken like a Southern woman still angry about the brutality of Sherman's march.
Lincoln was a lawyer not a evil psychopath. I admit the difference isn't that big.

I should also say Lincoln's war only killed between 650.000 and 850,000 Americans. Granted that was a large share of the total population of around 31 million at the time.
Particularity in the Southern States who had less than 9.5 of that while still carrying nearly half the losses. Hence why the civil War was such a traumatic an event for the Southern States.

Today the U. S. population is about 334 million so to put theses losses into perspective today you simply need to multiply them by around 10.6. So imagine losing between 6.9 and 9 million people in 4 bloody years.

[Leopard23]

What is the Difference between George Washington rebeling against the British and Robert E Lee rebeling against the Union? Right makes right.

[monorprise]

@leopard23

I don't think the south fully expected it would have to go to war.

Had the south fully expected war there were quite a few things they could have done to prepare ranging from leaving their delegation in congress to filibuster until such time the union acknowledged their independence to stockpiling weapons and arranging forign support.

[Leopard23]

I think the south thought it would a quick war. A few big battles led by the best general America had. They thought the war would be won on the battlefield not in the factory. Technology of war had progressed from the napoleon wars to the American civil war.

[jshm2]

The people ARE the state. The land belongs to whoever owns it. Abolishing slavery meant the people couldn't be owned as they used to be.

[monorprise]

@jshm2 You seem to be giving me 3 different unrelated statements. Could you clarify what you mean?

I take it you agree that the States are simply political communities of people,

That you also beleive Land ownership in title is ultimately in charge of sovereign ownership.

Slavery was not an issue of the conversation. Althou if your interested Slavery in different states at different times, and did not end in all the united states (Only remained in Kentucky) until December 6, 1865, 6+ months after the Civil War ended May 26, 1865.

[NamerOfStars]

If it was unConstitutional, then West Virginia would cease to exist, no?

[monorprise]

@NamerOfStars
Ironically what West Virginia did was patently unconstitutional unless you assume Virginia was no longer one of the united States. Otherwise they violated Article 4 section 3 clause 1 in creating West Virginia out of Virginia without the consent of the Virginia state legislator.

They also did so under union occupation with Union troops posing as West Virginians, but that's anther election integery issue.

Now West Virginia will tell you that, because the rest of Virginia supposedly violated the Federal Constitution in withdrawing from the union they were no longer Virginia, and thus they gave themselfs permission by posing as the Virginia's legislator at the Wheeling convention.

That of course unilaterally presupposes the following unwritten clauses to the Constitution.
1: Secession is prohibited.
2: The leaders who proclaim independence abandon their offices.
3: People who claim loyalty have the right to take said abandon office for themselfs without an election.
4: Said leader have the right to pass bills as state legislator without even a quorum of a majority of Virginia.

None of theses spesfic rules are written in any constitution, so the Wheeling convention even if it did represent the people of West Virginia rather than the occupying union army was just make it up as they go.

Insolently there is no problem with West Virginia becoming an independent state and being admitted to the union if secession from said union were legitimate. Only the question of whether or not West Virginia actually voted to do so rather than the occupying union army.

[Hispanic-Cool-Guy]

Its certainly treacherous.

[monorprise]

If their allegiances was to the Constitution which did not attempt to forbid secession, how could exercising that fundamental right be "treacherous"?

[Hispanic-Cool-Guy]

There has to be something in the constitution that the union of states must stay intacted after the Civil War.

[monorprise]

@Hispanic-Cool-Guy They ramrodded the 14th amendment thou which tried to defund any rebellion. That is if you assume an amendment can be ratified by states literal under the gun, and ratification prior to 3/4th is 1 one only if you vote in favor of ratification.

That said British law unlike the Federal Constitution actually did forbid secession/revolution in 1776. Which is why we felt it necessary to point out the logical fact that this right is soo essence to a free people it cannot be ceded or forbidden. That a legitimate goverment must ALWAYS maintain the consent of the governed.

As such it really doesn't matter what you beleive about the unwritten 'laws' of the Constitution or the status and meaning of the 14th amendment.