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Posted by aogThursday, 30 April 2009 at 08:44 TrackBack Ping URL

Many folk have been ragging on Texas Governor Rick Perry for alledgedly talking about secession (which he didn’t — he was citing the federalism implicit in the 10th Amendment) but apparently this has had some effect on the Obama Administration. Hot Air reports that the US Department of State now considers Texas a foreign country.

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daniel duffy Thursday, 30 April 2009 at 11:08

He never said the S-word himself (though his admireres in the crown shouted it repeatedly), but he realy didn’t have to:

“There’s a lot of different scenarios,” Perry said. “We’ve got a great union. There’s absolutely no reason to dissolve it. But if Washington continues to thumb their nose at the American people, you know, who knows what might come out of that. But Texas is a very unique place, and we’re a pretty independent lot to boot.” - quote from Fox News. So what else could he possibly have meant, if not seccesion? Your 10th ammendment reference is but a fig leaf)

As for leaving the union, this issue has been legally decided. Aside from the fact that war is the ultimate court of appeals, and rendered its final decsion at Appomatox CH, Secessionists lost the legal argument too in “Texas v. White” in 1869. The Supreme Court held that the Constitution did not permit states to secede. Period. End of argument.

Annoying Old Guy Thursday, 30 April 2009 at 11:57

So, your view is that if a person makes the statement “if X continues, Y will result”, then they are a supporter of Y? Hmmm, let’s apply that to AGW, which would make someone like you a supporter of global warming. Thanks for admitting it, if only indirectly.

daniel duffy Thursday, 30 April 2009 at 12:47

Yes, surely the Texas governor had no intention of implying, suggesting or insinuating that he would be in favor of scession, which is why he forcefully reprimanded those in the audience who were shouting for it and reminded them that advocating secession is treason.

Oh wait - he didn’t.

Please stop being as disingenous as Gov. Perry. You’re better than that.

erp Thursday, 30 April 2009 at 13:19

”… US Department of State now considers Texas a foreign country.”

Like it didn’t before.

Bret Thursday, 30 April 2009 at 13:23

daniel duffy wrote: “…its final decsion at Appomatox…

Was that a final decision or an interim decision. I thought that many southerners feel that the south will one day rise again. In addition, I don’t think the rest of the union would have the will to do anything much about it if Texas declared independence.

David Cohen Thursday, 30 April 2009 at 18:43

Advocating secession is not treason.

Annoying Old Guy Thursday, 30 April 2009 at 19:02

I think Perry was making neutral statements and letting the crowd think what it wanted, a political tactic that got our current President elected.

daniel duffy Friday, 01 May 2009 at 05:34

The U.S. Constitution defines treason as follows, “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort…”

The act of secession, and the armed rebellion that inevitably accompanies it, is levying war against the United Sates. This is true whether you are Jeff Davis, Aaron Burr, or a radical left winger advocating the overthrow of the US back in the 1960s. Furthermore, the SC has definitively ruled in “Texas v. White” that secession is unconstitutional and not a state right.

I’m not sure if capital punishment still applies to acts of treason. But for this former USAF officer, I personally believe that traitors deserve to be hanged.

daniel duffy Friday, 01 May 2009 at 08:10

Furthermore, the advocating of secession comes under the “…adhering to their Enemies, giving them Aid and Comfort…” portion of the constitution’s definition of treason.

Bret Friday, 01 May 2009 at 11:26

That’s an interesting interpretation. With that interpretation, clearly all critics of the Iraq war (Vietnam war, etc.) were treasonous and should’ve been executed for giving aid and comfort. That makes Obama himself a traitor. Why is nobody executing him?

Tom C Friday, 01 May 2009 at 11:39

Check the Resolutions of 1798. The oath of office is a promise to “… preserve, protect and defend the Constitution…”. Last I looked, the 9th and 10th ammendments were still in effect regardless of the court’s deconstructionist efforts to repeal them without concurrence of the states.The states are to be check on the central power. Maybe it’s time to fullfill their proper role. Checks and balances are the foundation of our federal system. How can that be treason?

daniel duffy Friday, 01 May 2009 at 13:30

Bret - It’s one thing to protest a war or any other government policy. Giving aid and comfort to the enemy is quite another thing. Those protesting the Viet Nam war were within their rights. Hanoi Jane Fonda committed treason. Lindberg and other isolationists were within their rights. Members of the American Nazi Bund were traitors. Gen McClellan could protest the civil war and run against Lincoln for president. Copperheads were traitors.

Tom - The SC cannot repeal any portion of the consitution (in effect declaring the constitution to be unconstitutional, which is nonsense). What they do is interpret the constitution. Don’t like their interpretation? Then elect a president and a congress who will appoint SC justices that share your opinion and have them overturn the ruling. Until then, what the SC says is the law of the land.

Deal with it.

Bret Friday, 01 May 2009 at 14:10

daniel duffy wrote: “Lindberg and other isolationists were within their rights.

Ah, so the line as a little grayer than you originally made it out to be after all. So let’s see which statements you think are on which side of the line:

  1. “If in the hypothetical case that Texas were to secede, Texans would be better off.”
  2. “I know it can’t happen, nor would I support secession, but I wish Texas was not part of the U.S.”
  3. “I wish Texas was not part of the U.S.”
  4. “I wish Texas would secede.”
  5. “I would like to propose a constitutional amendment allowing Texas to secede.”
  6. “I would support the secession of Texas by any legal means.”
  7. “I would support the secession of Texas by any non-violent means.”
  8. “I would support the secession of Texas by any means.”
  9. “I would support the secession of Texas.”
  10. “I advocate the secession of Texas.”
  11. “I would like us to band together to work towards the secession of Texas by any legal means.”
  12. “I would like us to band together to work towards the secession of Texas by any non-violent means.”
  13. “I would like us to band together to work towards the secession of Texas by any means.”
  14. “I would like us to band together to work towards the secession of Texas.”
  15. “Let’s work towards secession.”1
  16. “Let’s secede.”1

Which of the above statements fall under the treason sections of the constitution?

Personally, I think that people can spout off all they like (Freedom of Speech). They actually have to ACT for it to possibly be treasonous.

1 Assume the speaker is a Texan (I’m not)

daniel duffy Friday, 01 May 2009 at 14:16

My personal opinion would be that treason starts with #10. But you would have to consult a lawyer.

daniel duffy Friday, 01 May 2009 at 14:21

Historical note: During the nullification crisis of 1833, when South Carolina threatened to secede, President Andrew Jackson threatened in turn to hang anyone who advocated scession. Ole Hickory was old school. He used the following argument:

The Ordinance (of Nullification) is founded… on the strange position that any one state may not only declare an act of Congress void, but prohibit its execution; that they may do this consistently with the Constitution; that the true construction of [the Constitution] permits a state to retain its place in the Union and yet be bound by no other of its laws than those it may choose to consider as constitutional.… Look for a moment to the consequence. If South Carolina considers the revenue laws unconstitutional and has a right to prevent their execution in the port of Charleston, there would be a clear constitutional objection to their collection in every other port; and no revenue shall be collected anywhere.… If this doctrine had been established at an earlier day, the Union would have been dissolved in its infancy.…

I consider, then, the power to annul a law of the United States, assumed by one state, incompatible with the existence of the Union, contradicted explicitly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.

In vain these sages [the framers of the Constitution] declared that Congress should have the power to lay and collect taxes, duties, etc.; in vain they have provided that they shall have the power to pass laws which shall be necessary and proper to carry those powers into execution, that those laws and the Constitution should be the Îsupreme law of the land, and that judges in every state shall be bound thereby…Ì Vain provisions! ineffectual restrictions! vile profanation of oaths! miserable mockery of legislation! if a bare majority of voters in any one state may, on real or supposed knowledge of the intent with which a law has been passed, declare themselves free from its operation.…

The right to secede is deduced from the nature of the Constitution, which they say, is a compact between sovereign states who have preserved their whole sovereignty and are subject to no superior: that because they make the compact they can break it when their opinion has been departed from by other states.…

The Constitution forms a government, not a league.… Each state having expressly parted with so many powers as to constitute jointly with other nations, a single nation, cannot from that period, posses any right to secede, because such succession does not break a league, but destroys the unity of a nation.… To say that any state may at pleasure secede from the union is to say that the United States is not a nation.… Because the union was formed by a compact, it is said that the parties to that compact may, when they feel themselves aggrieved, depart from it; but it is precisely because it is a compact that they may not. A compact is a binding obligation.…

Bret Friday, 01 May 2009 at 14:42

daniel duffy wrote: “But you would have to consult a lawyer.

Oh heavens no, I would not need to consult a lawyer. It’s clear to me that any speech regarding the governing and the organizing of the United States and its member States is de facto legal, whether or not one could make constitutional arguments about it.

Was anyone arrested in Texas at Gov. Perry’s speech (since, as you wrote, “his admireres[sic] in the crown shouted it [secession] repeatedly”)? Were any arrests even seriously threatened?


Therefore, if it’s not actually legal, it is for all practical purposes legal.

In addition, I believe that because Obama is such a wimp, that Texas could actually secede without a military response against them.

Bret Friday, 01 May 2009 at 14:45

By the way, I don’t see any difference whatsoever between 5, 6, 9, 10, 11, 14, 15, and 16.

David Cohen Saturday, 02 May 2009 at 08:30

Let’s start with what “aid and comfort” means. It does not mean saying nice things about them. It means what the common law of England understood it to mean in 1789. As always, we look to Blackstone to tell us:

IF a man be adherent to the king’s enemies in his “realm, giving to them aid and comfort in the realm, or elfewhere,” he is alfo declared guilty of high treafon. This muft likewife be proved by fome overt act, as by giving them intelligence, by fending them provifions, by felling them arms, by treacheroufly furrendering a fortrefs, or the like. By enemies are here underftood the fubjects of foreign powers with whom we are at open war. As to foreign pirates or robbers, who may happen to invade our coafts, without any open hoftilities between their nation and our own, and without any commiffion from any prince or ftate at enmity with the crown of Great Britain, the giving the many affiftance is alfo clearly treafon; either in the light of adhering to the public enemies of the king and kingdom, or elfe in that of levying war againft his majefty. And, moft indifputably, the fame acts of adherence or aid, which (when applied to foreign enemies) will conftitute treafon under this branch of the ftatute, will (when afforded to our own fellow-fubjects in actual rebellion at home) amount to high treafon under the defcription of levying war againft the king. But to relieve a rebel, fled out of the kingdom, is no treafon: for the ftatute is taken ftrictly, and a rebel is not an enemy; an enemy being always the fubject of fome foreign prince, and one who owes no allegiance to the crown of England. And if a perfon be under circumftances of actual force and conftraint, through a well-grounded apprehenfion of injury to his life or perfon, this fear or compulfion will excufe his even joining with either rebels or enemfes in the kingdom, provided he leaves them whenever he hath a fafe opportunity.

Blackstone’s Commentaries, Book IV, Ch. 6 (emphasis added).

So making a speech in Texas hinting at the possibility of secession is not conceivably treason. It’s free speech, it’s not “aid and comfort,” there is no “enemy,” there is no overt act and there is no making war on the sovereign.

Tom C Saturday, 02 May 2009 at 09:32

Jackson quotes the plain words of the constitution regarding a distinct grant of power to the central government by the states. Other powers assumed by the federal governmnet over time are simply not supported by such plain language. In those cases the power of nullification at the state and local level can be distinguished by the clear absence of delegation of power. Jackson would not support the central governmnet overstepping it’s power (the central bank being the most obvious example) and, I believe, strictly construct the words of the constitution as a limitation on federal power as a protection for the union he loved and the constitution, including the plain meaning of the 9th and 10th ammendmnets regarding powers not delegated. Jackson was a unionist as well as a strict constructionist and a small governmnet democrat.

Tom C Saturday, 02 May 2009 at 12:15

BTW, Jackson had no problem exercising executive power in defiance of a Supreme Court ruling when he believed it was wrong. How’d the quote go, ‘Marshall has ruled, now let him enforce it’? A conflict between the judicial power and the executive power was decided by the executive in the Georgia indian case contradicting the order of the court. If a responsible executive has the support of the people, what is the court to do other than opine?

daniel duffy Sunday, 03 May 2009 at 11:34

Bret- if the police had been better prepared I’m sure they could have arrested those advocating secession under anti-sedition laws like the Smith Act (“knowingly or willfully advocate, abet, advise or teach the duty, necessity, desirability or propriety of overthrowing the Government of the United States or of any State by force or violence, or for anyone to organize any association which teaches, advises or encourages such an overthrow, or for anyone to become a member of or to affiliate with any such association.”). Previously used against Nazis and Communists, the Smith Act is still on the books. The SC has ruled that for the Smith Act to be legal, to be violated, people must be encouraged to do something, rather than merely to believe in something. Encouraging secession is exactly what these nut cases in Texas were doing. Perhaps it is time to dust it off and use it against those rabid right wingers advocating secession.

David - Jackson never got to hang anyone in South Caroline because it never actually seceded in 1833. Had it done so it would have become both defacto and dejure a “foreign enemy” of the United States. Then Jackson could have legitimately held his neck tie party for those who provided aid and comfort to this newly formed enemy. Which would have been approprite since anyone advocating harm to the US deserves to swing.

Tom - The assumption of Federal power over time has been supported by and justified by SC rulings. The constitution means what the SC says it means. Do like that? Then by all means elect a president and a congress that will appoint SC judges that share your views and opinions and who will then overturn these past decisions you don’t like. That is how the system works. In the meantime, you’re just going to have to deal with the fact that America in the last election has repudiated everything you believe in.

Tom c Sunday, 03 May 2009 at 13:45

The executive branch, the legislative branch as well as the states and the people (juries) have a role to play. All legislative power delegated by the states is vested in the Congress although the SC has seen fit to legislate in fact. How can that be? Dred Scott, Roe, Doe, Griswald and many other cases were legislative decisions put forward by the court as favoring the laws of one state over those of another or the federal government over the states without any basis other than pure rationalization, as in the case of Griswald, perceiving ‘rights emanating from penumbras’. Are the states truly obligated by those decisions other than by voluntary compliance? How would the court enforce those decisions without such compliance? The basic principle embodied in our constitution, unlike most others, is based on an assumed reasonableness and moderation in governmnet and minimal coercion rather than utopianism or abstractions regarding absolute Democracy or the general will. When such is no longer the case the states and the people have a role to play in maintaing a moderate govermnet which adheres to it’s charter.

The Virginia and Kentucky resolutions answering the Alien and Sedition Act provided a ‘wake-up call’ to the executive and legislative branches without any action by the court only by some of the states and ultimately the people. The entire bill of rights, spelling out the realtionships between the branches of governmnet and the states was cited as to it’s clear meaning and intent. Written by James Madison and Thos. Jefferson, the Resolutions forced the central governmnet to aknolwedged the check on it’s power provided by the states.

The power of taxation, both direct and indirect, was plainly delegated, with strict limitations, to the central governmnet and no real conflict arose that couldn’t have been addressed by the amendment process so Jackson was correct regarding the S. Carolina secessionists as well as his power as executive versus the court in the case of the Georgian Cherokees regardless of our more ‘enlightened’ feelings about the case or the President’s actions.

The question now arises as to the constitutional power of the Court vis a vis the states. Slavery is no longer a point of contention and the powers assumed by the central governmnet as a remedy to that evil may no longer serve any purpose other than consolidating unwarranted (unconstitutional?) power at the central level, particularly since many of the states ratifying those civil war amendmnetds did so at the point of a gun under military occupation. The role of the states is that of basic governmnet under ‘republican’ principles, the federal as that of strictly limited power consolidating the ‘voices’ of the states through their representatives into one regarding truly national issues as enumerated in the constitution. Modern technology in communication and mobility make the 9th and 10th amendments even more far-sighted and significant than they were at the time of ratification regardless of the fact that the Court has declared them to be mainly witout force since the civil war amendments were ratified even though there was no repeal of the 9th or the 10th.

As James Madison made clear at the time of the Alien and Sedition Act crisis, the states are the last bulwark against encroachments of the Federal Governmnet in those cases where the plain meaning of the constitution is violated as in the case when the federal branches assume powers not delegated. It’s a sensitive issue which should not be clouded by characterizing criticism of unwarranted assumptions of power by the central state as ‘treasonous’. The real treason may be in letting it continue without real opposition or even by state legislation if necessary. Governmnets want power and they will do almost anything to enlarge that power even if it means ignoring or rationalizing away the basic charter establishing that governmnet. The Supreme Court is part of that governmnet but the charter is still in effect regardless of some of it’s ‘interpretations’.

The intersting point regarding the constitional defintion of treason is it’s emphasis on describing treasonous actions against “them” (the individual states) rather than against “it” (the federal governmnet).

David Cohen Monday, 04 May 2009 at 18:22

Tom: Until after the Civil War, “United States” was a collective noun, treated as plural. Originally, the Treason clause referred to “Treason against the United States or any of them.” The constitutional convention discussed whether it was possible to commit treason against the states but not the federal government and decided that it wasn’t because the federal government was sovereign. The language was changed to reflect that decision by striking out “or any of them.”

Daniel: If South Carolina rebelled, it would be in rebellion and would be making war against the US. Anyone who participated would be a traitor. But they would not be “enemies” because they would be Americans, and people giving them aid and comfort, but not thereby making war on the US, would not be guilty of treason. In any event, there is no interpretation of the Constitution that would make saying anything about secession an act of treason.

David Cohen Monday, 04 May 2009 at 18:26

There’s a famous, and likely apocryphal, story about a Chinese government official who was chided for his government’s overreaction to any talk of Taiwanese independence. His response was that his government could not tolerate advocacy of Taiwanese independence, just as the US couldn’t be expected to allow, say, Hawaiians to demand Hawaiian independence. Whereupon he was told that people in Hawaii do that all the time and it was perfectly legal.

When you find yourself siding with the ChiComs, maybe it’s time to rethink.

Tom C Saturday, 09 May 2009 at 18:26

David- Read the article again. Who cares what the popular usage ‘became’? (I don’t) The states have a constitutional responsibilty to maintain the central governmnet in it’s proper role.

David Cohen Sunday, 10 May 2009 at 15:01

No, they don’t. Show me where the constitution says that.

Scott M Monday, 27 July 2009 at 16:38

Great comments some very insightful but none of any value. Read the Declaration of Independence. Those that wrote and signed it had had enough. Legality was no longer a question.

The framers of our constitution could not forsee everything. Certainly, that a future population would not only willingly surrender their freedom for government guarantees but that the population would evolve to what it is today. Greedy, sel-seeking and envious of those that work harder or manage their lives more prudently.

Does this government provide anyone more military protection from foreign powers than other citizens? Special diplomatic services? What reason could there be for me to pay more taxes to the federal government than anyone else? Our founders would look on what we have done with a great gift in absolute horror.

So, does this “majority” have a right to change the country into something else (more communist than anything else)? yes, obviously as a group they do. However, the Constitution was not a suicide pact. The states freely joined. There was no “till death we part” clause. Contract law is much older than our country. Clearly, those that made the contract have the right to modify or break it since there was nothing in the resolution that forbade it.

They called our founders traitors too. They risked everything for freedom and self determination. How is it different now? Because those in power say it is? When would those in power ever willingly give up power? Never in the course of human events has this happened. It has always been taken.

The fact that Lincoln and others inforced their will on the Confederacy settles nothing. The fact that the Supreme Court backed them means nothing either. They were hardly honest brokers.

The majority of our population is so far from the ideals of generations ago they might as well have just arrived from Mars. How else could you explain a person that would insist on taking fom another their just labor in the name of fairness?

In the final analysis the producers, read innovators, risk takers, workaholics etc whatever you choose to call them, what will they do? Continue to watch as the fruits of their labor and freedom are taken by politicians so that they can use it to buy votes and political power? Even if they do their children will rarely walk the same path.

What will a nation of “takers” be like? My prayer is that I don’t live to see it.

AVeryRoughRoadAhead Monday, 27 July 2009 at 22:45

How else could you explain a person that would insist on taking fom another their just labor in the name of fairness?

In the final analysis the producers, read innovators, risk takers, workaholics etc whatever you choose to call them, what will they do? Continue to watch as the fruits of their labor and freedom are taken by politicians so that they can use it to buy votes and political power? …

What will a nation of “takers” be like?

Well, in France, Finland and Sweden the innovators, risk-takers and workaholics DO allow most of the fruits of their labor to be taken and redistributed. Perhaps they realize that “taking from another their just labor in the name of fairness” is justifiable to a certain extent, insomuch as innovators and risk-takers in the developed world have the advantage of working in stable and sophisticated societies that facilitate innovation and allow the risk-takers to easily hold onto their gains. Paying a tithe to such societies is not an unjust demand. (Of course, there is always disagreement over where to draw the “equitable” line. For the next four decades, it would be wise to plan for “takings” to be at a much higher percentage than they were for the past two decades.)

The American image of France, Finland and Sweden is that they are nations of “takers”, and although they all have their problems, none of them are hellholes.

So if America ends up like that, it won’t be ideal, but it’ll be OK.

erp Tuesday, 28 July 2009 at 06:49

It’s our obligation as citizens to pay taxes to run the country and take care of the infirm in mind or body with the doers paying most of the freight. It’s also our obligation to not to dehumanize a large percentage of our citizenry by keeping them in the custodial care of welfare and entitlements.

Our founding fathers invented the level playing field of life, liberty and the pursuit of happiness with equality under the rule of law.

That’s as equal as it gets. We can’t and shouldn’t even try to make everyone “equal” because as we know the only way to do that is to bring everyone down to the lowest common denominator.

That some European countries aren’t hellholes (a matter of opinion) isn’t a ringing endorsement for our following in their wrong headed socialism.

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