Breaking Away: The Case for Secession

[Cubo de Sangre]

So we agree. That puts Cubo in a tough spot.

Not really. I already agreed might makes right as far as how the rubber meets the road.

Heh. I have no idea how much Zank makes, but I do alright as a lawyer who, among other things has to deal with constitutional law. I also did pretty good in Con Law back in school and, while it wasn't published, wrote a lengthy paper on the concept of sovereignty.

Zank, how much moolah you make?

Sure, it's a decent argument. But, beside the obvious problem of specific con law precedent saying you're wrong, it treats the constitution as a mere contract, which it is not. The decision of the states to give up their sovereignty in exchange to enter the union is more like a property transaction than a contract for services.

I'm aware you claim to be a lawyer as well. I'm aware that SCOTUS made a ruling. You've already agreed the Constitution doesn't spell out the term. Sometimes reasonable people can differ. I'll stick with the DoI over the AoC. I'd also not feel it moral to prevent a state from going their separate way if they so chose. What else do you want me to say?

Cubo for some reason thinks of states as monolithic entities.

In your mind you're going to continue to assume all sorts of things that aren't necessarily true because you disagree with my basic beliefs as espoused by Thomas Jefferson. I've got no idea how "monolithic" even applies in this discussion.

 

[Cubo de Sangre]

Yeah pretty much.

How so?

 

[OldGoat]

Yeah but the states also waived sovereignty for you and I to sue them (for example, the Federal Tort Claims Act and the state law equivalents). Doesn't mean that ceding was permanent. They can actually revoke it any time they want, or impose whatever conditions they want on it. Agreeing to forego sovereign rights, in the legal sense, doesn't mean you have permanently handed those rights away.

For example, you could have an express clause in the constitution giving a state the right to vote to withdraw from the union, and the idea that this was not possible due to 'sovereignty' would just be confused.

Now, it may be the case that it doesn't matter because the other guy beats you over the head with a crowbar until you relent, aka the Civil War, aka de facto sovereignty, but legally (de jure) it is not somehow required that every ceding or limitation of sovereign rights be permanent and irrevocable.

If for example the states gave the Federal government the right to regulate interstate commerce and to have a Congress, a president, and a Supreme Court via the Constitution the states cannot then claim they still have the sovereignty to take those rights away from the Federal government without a constitutional amendment. In this case the Constitution that the states agreed to trump whatever sovereign rights the states may claim.

There is actually a legal mechanism for secession now that I think about it. The states could hold a constitutional convention and rewrite the terms. Bam. Of course the barriers to do so are high, but it's possible.

 

[ncordless]

Yeah but the states also waived sovereignty for you and I to sue them (for example, the Federal Tort Claims Act and the state law equivalents). Doesn't mean that ceding was permanent. They can actually revoke it any time they want, or impose whatever conditions they want on it. Agreeing to forego sovereign rights, in the legal sense, doesn't mean you have permanently handed those rights away.

For example, you could have an express clause in the constitution giving a state the right to vote to withdraw from the union, and the idea that this was not possible due to 'sovereignty' would just be confused.

Now, it may be the case that it doesn't matter because the other guy beats you over the head with a crowbar until you relent, aka the Civil War, but legally it is not somehow required that every ceding of sovereign rights be permanent and irrevocable.

FTCA is different. They've never ceded sovereignty, just used their sovereignty to allow the claims. The states are still sovereign, and immune. They just waive the immunity in the limited circumstances set forth in FTCA. To interpret the Constitution as a mere state waiver would be odd to say the least.

 

[OldGoat]

Not really. I already agreed might makes right as far as how the rubber meets the road.



I'm aware you claim to be a lawyer as well. I'm aware that SCOTUS made a ruling. You've already agreed the Constitution doesn't spell out the term. Sometimes reasonable people can differ. I'll stick with the DoI over the AoC. I'd also not feel it moral to prevent a state from going their separate way if they so chose. What else do you want me to say?



In your mind you're going to continue to assume all sorts of things that aren't necessarily true because you disagree with my basic beliefs as espoused by Thomas Jefferson. I've got no idea how "monolithic" even applies in this discussion.

Answer what prevents a city or region from splitting from the state? Or a city from tossing out the blighted half? Furthermore how did those states get their original power and land? As a charter from a colonial empire? Do the states have a legal claim to their land? How are they going to enforce it?

Law and rights only exists if you have mechanisms of enforcement.

 

[ncordless]

Old Goat has a kernel of truth there. It isn't that secession is unconstitutional. It's that unilateral secession is unconstitutional. It would take, at the very least, an act of Congress.

 

[Zankou]

That gets into the fact that if you agreed to the rules while you are a member, you are stuck by them, just as with any agreement (like your gym membership). But it doesn't mean you can't terminate the overall membership.

It's definitely true, I think, that the United States could just up and vote to dissolve if we collectively wanted to. But that doesn't bear on whether the members can terminate as well.

 

[Cubo de Sangre]

Answer what prevents a city or region from splitting from the state? Or a city from tossing out the blighted half? Furthermore how did those states get their original power and land? As a charter from a colonial empire? Do the states have a legal claim to their land? How are they going to enforce it?

Force through strength in numbers and resources. I thought this was covered extensively in this thread already.

You're making it sound (to me) like there's no validity to any reasoning that can't be backed up by force. Personally I'd like to evolve from that. Hence why my politics stem from my ideas of right and wrong and not so much from what directly or indirectly benefits me the most.

 

[Cubo de Sangre]

That gets into the fact that if you agreed to the rules while you are a member, you are stuck by them, just as with any agreement (like your gym membership). But it doesn't mean you can't terminate the overall membership.

It's definitely true, I think, that the United States could just up and vote to dissolve if we collectively wanted to. But that doesn't bear on whether the members can terminate as well.

Of course, because there would be no countering force. Still curious how I'm in a tough spot.

 

[ncordless]

I'm aware you claim to be a lawyer as well. I'm aware that SCOTUS made a ruling. You've already agreed the Constitution doesn't spell out the term. Sometimes reasonable people can differ. I'll stick with the DoI over the AoC. I'd also not feel it moral to prevent a state from going their separate way if they so chose. What else do you want me to say?

Whether it's moral or not is a different thing entirely. And you paint quite a broad brush on the morality of it there. In some instances, secession is certainly moral even if it is illegal. In others, most definitely not even if it were legal.


"Claim" Do you doubt it?

Sure reasonable people can differ. And reasonable people can argue about their differences.

"SCOTUS made a ruling . . ." and, under the Constitution, controversies about what the Constitution means are resolved by SCOTUS, so even though the Constitution doesn't specifically say whether or not a state can secede, the answer is already there. Obviously, we are talking normatively, so we can talk about what it should mean. But the Constitution, by its terms, means what SCOTUS says it means.

 

[Zankou]

FTCA is different. They've never ceded sovereignty, just used their sovereignty to allow the claims. The states are still sovereign, and immune. They just waive the immunity in the limited circumstances set forth in FTCA. To interpret the Constitution as a mere state waiver would be odd to say the least.

Yeah I don't think it's a mere waiver, my point is that there's nothing about agreeing to give up sovereignty over a particular aspect of your state *that inherently requires such agreement to be permanent*. Regardless of whether you call it waiver, ceding, agreement, etc. There's neither a legal nor logical reason why that would be the case. This is why nobody would ever think for a moment that our constitution could not expressly allow the states to withdraw ... it's not even somehow unusual or contradictory for a constituent state to have that type of right, it's actually a quite bland and ordinary type of political arrangement, see e.g. the Scotland vote.

 

[Jack V Savage]

Yeah pretty much. Actually my theory is probably a bit simpler, borrowing from IDL the true American sovereign nowadays is $$$$$$$$, exerted through channels some would call 'the rich + capital holding entities' and others would call 'the Rothschild lizard cabal.'

In this sense, we have blended sovereignty yet again since Obama dances to the strings of the international lizard cabal.

That's too simple, though (even what I assume your real position is). Moneyed interests have a disproportionate influence over policy, but they're not the only voice that matters or even a dominant one at all times (maybe on trade policy, but that's partly based on a lack of any real intellectual opposition--pretty much everyone who knows that stuff thinks they're more or less right). Remember how bankers were screeching about interest rates being too low and especially about unconventional policy, but while the Fed was timid in its opposition, unlike their European counterparts, it did go in the direction the lizard people didn't want. Financial reform is another example--more timid than the left would want, but still didn't go the way big money wanted it to (that is, Dodd-Frank might not have been revolutionary, but Wall Street still opposed it hard and it got through).

 

[Zankou]

Whether it's moral or not is a different thing entirely. And you paint quite a broad brush on the morality of it there. In some instances, secession is certainly moral even if it is illegal. In others, most definitely not even if it were legal.


"Claim" Do you doubt it?

Sure reasonable people can differ. And reasonable people can argue about their differences.

"SCOTUS made a ruling . . ." and, under the Constitution, controversies about what the Constitution means are resolved by SCOTUS, so even though the Constitution doesn't specifically say whether or not a state can secede, the answer is already there. Obviously, we are talking normatively, so we can talk about what it should mean. But the Constitution, by its terms, means what SCOTUS says it means.

That is sort of true and sort of not true, I actually take the issue to have been decided less by SCOTUS and more by the Civil War ... from a legal realist perspective, SCOTUS was just operating as an appendage of the dominating military power. Had the South prevailed in the war, we today would all LOL at the claim that the Supreme Court had decided this issue, regardless of whatever opinions it had issued.

 

[ncordless]

That gets into the fact that if you agreed to the rules while you are a member, you are stuck by them, just as with any agreement (like your gym membership). But it doesn't mean you can't terminate the overall membership.

It's definitely true, I think, that the United States could just up and vote to dissolve if we collectively wanted to. But that doesn't bear on whether the members can terminate as well.

Right. Instead of a gym membership, think of a homeowner association. Can 1 member just decide he's out and unilaterally remove his property from the association? Of course not, otherwise there would be no point. They way you get out is either through having the whole association dissolved, or convince the homeowner association to let you out.

 

[Zankou]

That's too simple, though (even what I assume your real position is). Moneyed interests have a disproportionate influence over policy, but they're not the only voice that matters or even a dominant one at all times (maybe on trade policy, but that's partly based on a lack of any real intellectual opposition--pretty much everyone who knows that stuff thinks they're more or less right). Remember how bankers were screeching about interest rates being too low and especially about unconventional policy, but while the Fed was timid in its opposition, unlike their European counterparts, it did go in the direction the lizard people didn't want. Financial reform is another example--more timid than the left would want, but still didn't go the way big money wanted it to (that is, Dodd-Frank might not have been revolutionary, but Wall Street still opposed it hard and it got through).

I actually was just joking and am not at all big on 'bankers' as an entity running the world, my view is a bit more Hegelian than that, which is that the behavior of states can largely be predicted as a consequence of the underlying market economics. Not entirely and not for states that are more insulated from the global capital markets (Allahu Akbar!), but primarily.

 

[OldGoat]

Yeah I don't think it's a mere waiver, my point is that there's nothing about agreeing to give up sovereignty over a particular aspect of your state *that inherently requires such agreement to be permanent*. Regardless of whether you call it waiver, ceding, agreement, etc. There's neither a legal nor logical reason why that would be the case. This is why nobody would ever think for a moment that our constitution could not expressly allow the states to withdraw ... it's not even somehow unusual or contradictory for a constituent state to have that type of right, it's actually a quite bland and ordinary type of political arrangement, see e.g. the Scotland vote.

The UK didn't have to abide by Scotland's vote if they chose not too.

When you have 5-4 decisions on a myriad of cases at the Supreme Court level you cannot say there is overwhelming proof or consensus one way or the other. So "interpreting" a legal right to secede when the historical evidence is that you ain't getting out without winning a civil war is meaningless.

If a majority of states decided to have a constitutional convention, there is no telling what would come out of that. State boundaries themselves wouldn't even be fixed. And how would that be solved?

Oh and California being divorced from the watershed it needs? Lol. Hope they can build a few 100 nuclear reactors to start desalinating the Pacific.

 

[ncordless]

That is sort of true and sort of not true, I actually take the issue to have been decided less by SCOTUS and more by the Civil War ... from a legal realist perspective, SCOTUS was just operating as an appendage of the dominating military power. Had the South prevailed in the war, we today would all LOL at the claim that the Supreme Court had decided this issue, regardless of whatever opinions it had issued.

Well, from a legal realism perspective, law is just an excuse for violence and no laws mean anything unless you have the power to enforce it. So, if we are going to shift like this, then the state's right to secede is only as good as its ability to defend its borders and throw out all federal government authority. If that's the case, states have no rights whatsoever.

 

[Zankou]

Well, from a legal realism perspective, law is just an excuse for violence and no laws mean anything unless you have the power to enforce it. So, if we are going to shift like this, then the state's right to secede is only as good as its ability to defend its borders and throw out all federal government authority. If that's the case, states have no rights whatsoever.

Well, excluding Texas that may be true from a legal realist perspective. :wink:

 

[ncordless]

Well, excluding Texas that may be true from a legal realist perspective. :wink:

I'd take the resources at Ft. Hood, Ft. Bliss, and Goodfellow over the Texas revolutionary army anyday.:icon_lol:

 

[Jack V Savage]

I actually was just joking and am not at all big on 'bankers' as an entity running the world, my view is a bit more Hegelian than that, which is that the behavior of states can largely be predicted as a consequence of the underlying market economics. Not entirely and not for states that are more insulated from the global capital markets (Allahu Akbar!), but primarily.

I got that you were joking (obviously), but I figured the joke was more about the framing than the reality.

I thought you were a big believer in irrationality as a force in human affairs, including politics. Does the view you express in this post sort of contradict that? I guess it's vague enough and you left enough room for other things to matter that it doesn't have to, but I wouldn't expect you to be saying even as much as you did there. How does the American South fit into your theory?