[lbo-talk] WTF??? 6 US states reclaim sovereignty - 10thAmendment

Charles Brown cdb1003 at prodigy.net
Thu Feb 5 21:55:06 PST 2009



> >> Dennis: As odious as the Confederacy was, they had every
> right to
> >> secession...


> > Legally speaking , from whence do you derive this
> "every right" to secession
>
> From the plain text of the Tenth Amendment which declares
> that rights not specifically granted to the federal
> government or denied to the states are retained by the
> states or the people. Since the Constitution says nothing
> about separation of a state from the union, secession is
> legally a right retained by the states or the people. The
> proper answer, which Lincoln could not make because he was
> in no way a revolutionary, is that secession is not the
> right of a state but of the "people" of that
> state, including blacks, women, and native Americans.
> Moreover, US citizenship under the Fifth Amendment cannot be
> revoked without due process; so the leaders and soldiers of
> the Confederacy, by making war (Fort Sumter) against the US,
> were openly committing treason and needed to be arrested and
> subjected to the punishment (capital) prescribed for
> treason.
>
>
> Shane Mage

^^^^ CB: You are right (every right), Dennis; you are 3/4 right, Shane.

The Articles of Confederation says:

Article II. Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

So, that _state_ sovereignty and independence would seem to include the right and power of secession.

The states had the power under the Articles of Confederatin to exclude women, Black people and Native Americans from being citizens or "free people". The Constitution didn't address this until after the Civil War. So, they didn't have to include them in a vote on secession as Shane argues.

So,under this argument, Lincoln _would be_ a revolutionary, in that he waged the war not on a legal basis, but as an outlaw.

Although ,the Articles of Confederation does have a clause:

"and the Union shall be perpetual".

It seems to contradict the sovereignty and independence clause, but,

by that "perpetual union" clause, it could be argued that secession was not a power that the states had in the Articles of Confederation, amd therefore there was no power of secession "reserved to the states".

(Amendment X of The Constitution: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are _reserved to the states respectively_, or to the people. "Reserved" not "retained")

The perpetual union clause of the Articles of Confederation would seem to contradict the "sovereignty and independence" clause.

It could be argued that all the powers of sovereignty _had_ been delegated to the United States, or _reserved_ to the People, by the Preamble's "We, the People" clause, the whole People, not just people of the state that seeks to secede.

So , Lincoln might have hung his hat on the argument on perpetual Union out of the Articles ;or that the Constitution reserves all sovereignty in the whole People (as in All Power to the People; smile); or both.

The Articles of Confederation is here: http://www.usconstitution.net/articles.html



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